OT:RR:CTF:FTM H312777 PJG
Ms. Gloria Isabel Saenz
Ureblock S.A. DE C.V.
Anillo Periferico Poniente 7333
Zapopan 45010
Mexico
Re: Country of origin, marking, and tariff classification of foam pillow with zippered pillow cover; USMCA Eligibility
Dear Ms. Saenz:
This is in response to your request, dated July 13, 2020, for a binding ruling on the tariff classification, country of origin, marking, and preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”) of the “Fun Pillow,” which is a foam pillow with a zippered pillow cover. Your request was forwarded by the National Commodity Specialist Division to this office for a response.
FACTS:
You have provided the following information concerning the “Fun Pillow:”
Overall size of pillow: 40 cm x 60 cm x 11 cm
Pillow case/Outer shell (front and back):
200 g/m2
82% nylon and 18% spandex;
Warp knit
Non-gusset, knife edge, short side zipper
Piping:
110 g/m2 microfiber contrast color
Stuffing:
Molded polyurethane foam
You indicate that each molded polyurethane foam stuffing is manufactured using an
injection process. Specifically, you indicate that chemicals are added to an injector and mixed with a regulated temperature and adjusted pressure. You state that the aluminum mold is pre-heated, and the chemical mixture is injected into the mold where it cures and is removed to cool.
You state that the following processes occur in China:
pillow cover fabric is warp knit and finished;
pillow cover fabric is cut and sewn to form the shell – including the piping; and
unstuffed pillow cover is shipped to Mexico.
You state that the following processes occur in Mexico:
pieces of molded polyurethane foam are produced;
pillow cover is filled with the polyurethane foam;
pillow with pillow cover is packaged in box made in Mexico; and
completed product is shipped to the United States.
ISSUES:
What is the tariff classification of the “Fun Pillow?”
What is the country of origin marking of the “Fun Pillow?”
Is the “Fun Pillow” eligible for preferential tariff treatment under the USMCA?
LAW AND ANALYSIS:
What is the tariff classification of the “Fun Pillow?”
The classification of merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”) is governed by the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2021 HTSUS provisions under consideration are as follows:
6304 Other furnishing articles, excluding those of heading 9404:
9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
GRI 3(a) and (b) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
The EN to GRI 3(b) states, in pertinent part:
(VI) This second method relates only to :
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
Examples of the latter category of goods are :
(1) Ashtrays consisting of a stand incorporating a removable ash bowl.
(2) Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.
As a general rule, the components of these composite goods are put up in a common packing.
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The EN to 63.04 provides, in relevant part, as follows:
This heading covers furnishing articles of textile materials, other than those of the preceding headings or of heading 94.04, for use in the home, public buildings, theatres, churches, etc., and similar articles used in ships, railway carriages, aircraft, trailer caravans, motor cars, etc.
These articles include wall hangings and textile furnishings for ceremonies (e.g., weddings or funerals); mosquito nets or bed nets (including bed nets specified in Subheading Note 1 to this Chapter); bedspreads (but not including bed coverings of heading 94.04); cushion covers, loose covers for furniture, antimacassars; table covers (other than those having the characteristics of floor coverings see Note 1 to Chapter 57); mantlepiece runners; curtain loops; valances (other than those of heading 63.03).
The subject merchandise is made up of different components, specifically, the molded polyurethane foam pillow form and the zippered textile pillow case. The polyurethane foam pillow form is classified in heading 9404, HTSUS, which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered.” See New York Ruling Letter (“NY”) J86712 (July 22, 2003) (determining that the polyurethane foam pillow is classified in heading 9404, HTSUS). The zippered textile pillow case is classified in heading 6304, HTSUS, which provides for “Other furnishing articles, excluding those of heading 9404.” See HQ 966808 (Sept. 22, 2004) (classifying that a finished zippered pillow cover in heading 6304, HTSUS, and stating that “CBP has consistently ruled that finished pillow or cushion covers with zipper closures are classifiable in heading 6304, HTSUS); see also HQ 967166 (Sept. 22, 2004) (classifying a zippered pillow cover in heading 6304, HTSUS). When by application of GRI 2, HTSUS, goods are prima facie classifiable under two or more headings, GRI 3, HTSUS, is applicable. According to EN IX for GRI 3(b), a “composite good” is a good that is “made up of different components,” which may be “adapted one to the other and [be] mutually complementary and . . . together . . . form a whole which would not normally be offered for sale in separate parts.” The subject merchandise is a composite good; therefore, GRI 3(b) requires that classification be based on the product that provides the composite good with its essential character. See NY J86712 (stating that the polyurethane foam pillow and its zippered cover are a composite good).
The EN to GRI 3(b) (VIII) lists factors to help determine the essential character of such goods: “the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” The U.S. Court of International Trade (“CIT”) has indicated that the factors listed in the EN to GRI 3(b) (VIII) are “instructive” but “not exhaustive” and has indicated that the goods must be “‘reviewed as a whole.’” The Home Depot, U.S.A., Inc. v. United States, 30 Ct. Int’l Trade 445, 459-460 (2006) (citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 384 (1971) (citation omitted)). With regard to the good which imparts the essential character, the CIT has stated that it is “‘that which is indispensable to the structure, core or condition of the article, i.e., what it is.’” Id. at 460 (citing A.N. Deringer, Inc., 66 Cust. Ct. at 383).
Applying the essential character analysis to the subject merchandise, we find that the bulk and structure of the product is provided by the polyurethane foam pillow. Moreover, given that the purpose of the product is to provide a cushioning and a resting place for the head, then the core of the article is also the polyurethane foam pillow. Therefore, we find that the polyurethane foam pillow component provides the essential character to the merchandise. Accordingly, the subject merchandise is classified under heading 9404, HTSUS, and specifically in subheading 9404.90.20, HTSUS, which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Pillows, cushions and similar furnishings: Other.”
What is the country of origin marking of the “Fun Pillow?”
The marking statute, Section 304(a), Tariff Act of 1930, as amended (19 U.S.C.
§ 1304(a)), provides that unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).
To determine the country of origin and the country of origin marking of the subject merchandise, CBP must apply the statutory rules of origin set forth in Section 334 of the Uruguay Round Agreements Act (“URAA”) (codified at 19 U.S.C. § 3592), enacted on December 8, 1994, which provides the rules of origin for textiles and apparel products entered, or withdrawn from warehouse, for consumption on or after July 1, 1996. Section 102.21 of the Code of Federal Regulations (19 C.F.R. § 102.21), implements the URAA. The term “[t]extile or apparel product” is defined by 19 C.F.R. § 102.21(b)(5) as including, in relevant part, goods that are classifiable under subheading 9404.90, HTSUS.
The country of origin of a textile or apparel products will be determined by sequential application of paragraphs (1) through (5) of section 102.21 (19 C.F.R. § 102.21(c)(1) – (5)). Paragraph (c)(1) of section 102.21 (19 C.F.R. § 102.21(c)(1)) states that “[t]he country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced.” The subject merchandise was not wholly obtained or produced in a single country, therefore, 19 C.F.R. § 102.21(c)(1) is inapplicable.
Paragraph (c)(2) of section 102.21 (19 C.F.R. § 102.21(c)(2)) states that “the country of origin of the good is the single country, territory, or insular possession in which each foreign material incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section. Paragraph (e) of section 102.21 (19 C.F.R. § 102.21(e)) states, in relevant part, that “[t]he following rules will apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section:”
HTSUS Tariff shift and/or other requirements 9404.90 Except for goods of subheading 9404.90 provided for in paragraph (e)(2)
of this section, the country of origin of a good classifiable under subheading 9404.90 is the country, territory, or insular possession in which the fabric comprising the good was formed by a fabric-making process.
Paragraph (e)(2) of section 102.21 (19 C.F.R. § 102.21(e)(2)) is inapplicable because it does not include the goods of subheading 9404.90.20, HTSUS. The term “fabric-making process” is defined by 19 C.F.R. § 102.21(b)(2) as “any manufacturing operation that begins with polymers, fibers, filaments (including strips), yarns, twine, cordage, rope, or fabric strips and results in a textile fabric.” The fabric comprising the good in this instance, is the pillow cover. You indicate that the pillow cover fabric is warp knit in China. Therefore, applying the tariff shift rule of 19 C.F.R. § 102.21(e) to the subject “Fun Pillow,” we find that the fabric-making process occurred in China. Accordingly, the country of origin of the subject “Fun Pillow” is determined by application of section 102.21(c)(2) and is China.
Part 134 of Title 19 of the Code of Federal Regulations (19 C.F.R. Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. You propose marking the “Fun Pillow” to indicate that the cover is made in China, the foam is made in Mexico and the product is assembled in Mexico. This is not an acceptable marking because the country of origin of the entire product is China, in accordance with the rules of origin set forth in section 102.21. Therefore, in accordance with the rules of origin set forth in section 102.21 and the country of origin marking requirements of 19 C.F.R. Part 134, the “Fun Pillow” should be marked as “Made in China.”
Is the “Fun Pillow” eligible for preferential tariff treatment under the USMCA?
The USMCA was signed by the Governments of the United States, Mexico, and Canada on November 30, 2018. The USMCA was approved by the U.S. Congress with the enactment on January 29, 2020, of the USMCA Implementation Act, Pub. L. 116-113, 134 Stat. 11, 14 (19 U.S.C. § 4511(a)). General Note (“GN”) 11 of the HTSUS implements the USMCA. GN 11(a)(i) provides that:
Goods that originate in the territory of Mexico, Canada or the United States (hereinafter referred to as “USMCA country” or “USMCA countries” as further defined in subdivision (l)(xxiv) of this note) under the terms of subdivision (b) of this note and regulations issued by the Secretary of the Treasury (including Uniform Regulations provided for in the USMCA), and goods enumerated in subdivision (p) of this note, when such goods are imported into the customs territory of the United States and are entered under a subheading for which a rate of duty appears in the “Special” subcolumn, followed by the symbol “S” in parentheses, are eligible for such duty rate, in accordance with section 202 of the United States-Mexico-Canada Agreement Implementation Act.
Accordingly, if all other requirements are satisfied, merchandise imported into the United States will qualify for preferential tariff treatment under the USMCA if it meets one of the origin criteria enumerated in GN 11(b). GN 11(b) provides as follows:
For the purposes of this note, a good imported into the customs territory of the United States from the territory of a USMCA country, as defined in subdivision (l) of this note, is eligible for the preferential tariff treatment provided for in the applicable subheading and quantitative limitations set forth in the tariff schedule as a “good originating in the territory of a USMCA country” only if—
the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
the good is a good produced entirely in the territory of one or more USMCA countries using non-originating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o)); or
* * *
The subject “Fun Pillow” does not meet the requirements of GN 11(b)(i) or (b)(ii). We must next consider whether the subject merchandise is originating under GN 11(b)(iii). As previously determined, the subject merchandise is classified under subheading 9404.90.20, HTSUS. The applicable rule of origin therefore is GN 11(o)/94.7, HTSUS, which provides as follows:
A change to subheading 9404.90 from any other chapter, except from headings 5007, 5111 through 5113, 5208 through 5212, 5310 through 5311, 5407 through 5408 or 5512 through 5516.
The non-originating pillow cover of Chapter 63 meets this tariff shift requirement. Accordingly, the subject “Fun Pillow” is an originating good under the USMCA.
HOLDING:
Under the authority of GRIs 3(b) and 6 the “Fun Pillow” is classified under heading 9404, HTSUS, and specifically in subheading 9404.90.20, HTSUS, which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Pillows, cushions and similar furnishings: Other.” The 2021 column one, general rate of duty is 6 percent ad valorem.
The country of origin of the “Fun Pillow” is China pursuant to 19 C.F.R. § 102.21(c)(2).
The “Fun Pillow” is eligible for preferential tariff treatment under the USMCA.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.”
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
Yuliya A. Gulis, Chief
Food, Textiles and Marking Branch