HQ 087345: Classification of cushions; classifiable in Heading 9404; insufficient information to make country of origin determinations

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 087345

                       September 25, 1990




CLA-2  CO:R:C:G   087345  CC

CATEGORY:  Classification

TARIFF NO.:  9404.90.1000, 9404.90.2000

Ms. Gloria M. Columbe
A.N. Deringer, Inc.
30 West Service Road
Champlain, N.Y. 12919-9703

RE:  Classification of cushions; classifiable in Heading 9404;
     insufficient information to make country of origin
     determinations

Dear Ms. Columbe:

     This letter is in response to your inquiry of May 25, 1990,
on behalf of Galerie India, requesting tariff classification and
country of origin determinations for cushions.  Samples were
submitted for examination.

FACTS:

     You have submitted four samples for classification.  Each
sample is a square-shaped cushion that measures approximately
15 inches on each side.  Each sample contains a filling made of
polyester.

     Sample A is designated by you as "silk saree border."  The
front is made of old silk sarees, and the back is made of plain
rayon.

     Sample B is designated by you as "Tibetan brocade."  The
front is made of hand-loomed rayon brocade in traditional Tibetan
design, and the back is made of plain rayon.

     Sample C is designated by you as "Tapestry."  The front is
made of 60 percent cotton and 40 percent rayon, and the back is
made of satin finish rayon with rayon piping.


     Sample D, designated by you as "pulkari," is a traditional
Indian cotton hand embroidered article, with tiny mirror
fragments.  The front is made of old tapestries, wall hangings,
or garments, and the back is made of cotton hand-loomed fabric.

     You state that the covers are made in India, and the filling
is made in Canada.  No other information was provided to indicate
what work was done and where it was done to create the finished
cushions.

ISSUE:

     Whether the submitted merchandise is classifiable in Heading
9404 of the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA)?

     What is the country of origin of the merchandise at issue?

     Whether the submitted merchandise is eligible for duty
treatment under the Canada Free Trade Agreement (CFTA)?

LAW AND ANALYSIS:

Classification

     Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.

      Heading 9404, HTSUSA, provides for, among other articles,
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.  The submitted merchandise is internally fitted with
polyester, and can be described as a pillow or cushion.
Therefore, it is classifiable in Heading 9404.

     Sample D is classifiable under subheading 9404.90.1000,
HTSUSA, which provides for pillows, cushions, and similar
furnishings, of cotton.  Samples A and B are classifiable under
subheading 9404.90.2000, HTSUSA, which provides for pillows,
cushions, and similar furnishings, other.  The question that
remains is under which subheading is Sample C classified.

     For Sample C, the front is made of 60 percent cotton and 40
percent rayon, the back is made of rayon, and the filling is made
of polyester.  According to Subheading Note 2 to Section XI,
HTSUSA:

     (A)  Products of chapters 56 to 63 containing two or more
     textile materials are to be regarded as consisting wholly of
     that textile material which would be selected under note 2
     to this section for the classification of a product of
     chapters 50 to 55 consisting of the same textile materials.

     (B)  For the application of this rule:

          (a)  Where appropriate, only the part which determines
               the classification under general interpretative
               rule 3 shall be taken into account.

     GRI 3(b) provides that goods consisting of different
materials shall be classified as if they consisted of the
material or component which gives them their essential
character.

     The front cover basically provides the decoration for Sample
C and, we believe, imparts the essential character to this
article.  Note 2 to Section XI states that goods classifiable in
chapters 50 to 55 or in Heading 5809 or 5902 and of a mixture of
two or more textile materials are to be classified as if
consisting wholly of that one textile material which predominates
by weight over each other single textile material.  Since cotton
predominates by weight in the front cover, Sample C is
classifiable under the subheading for cotton, 9404.90.1000,
HTSUSA.

Country of Origin

     For quota purposes, Section 12.130 of the Customs
Regulations (19 CFR 12.130) is applicable.  Section 12.130
provides that a textile product that is processed in more than
one country or territory shall be a product of that country or
territory where it last underwent a substantial transformation.
A textile product will be considered to have undergone a
substantial transformation if it has been transformed by means of
substantial manufacturing or processing operations into a new and
different article of commerce.

     Section 12.130(d)(2) of the Customs Regulations states that
in determining whether merchandise has been subjected to
substantial manufacturing or processing operations, the following
will be considered:

     (i) The physical change in the material or article as a
     result of the manufacturing or processing operations in each
     foreign territory or country, or insular possession of the
     U.S.



     (ii) The time involved in the manufacturing or processing
     operations in each foreign territory or country, or insular
     possession of the U.S.

     (iii) The complexity of the manufacturing or processing
     operations in each foreign territory or country, or insular
     possession of the U.S.

     (iv) The level or degree of skill and/or technology required
     in the manufacturing or processing operations in each
     foreign territory or country, or insular possession of the
     U.S.

     (v) The value added to the article or material in each
     foreign territory or country, or insular possession of the
     U.S., compared to its value when imported into the U.S.

     Since we do not have sufficient information concerning the
factors listed above, we are unable to issue a ruling concerning
the country of origin for the merchandise at issue at this time.
We would also need more detailed information concerning the
manufacturing and processing operations performed in each country
to create the merchandise.  If such information were submitted,
we would also be able to make a determination whether the goods
were subject to a different rate of duty under the CFTA.

     If you still wish to receive a ruling concerning the country
of origin of the submitted merchandise, please submit a new
request, containing the additional information requested, to the
following address:


                              Mr. John Durant
                              Director
                              Commercial Rulings Division
                              U.S. Customs Service
                              1301 Constitution Avenue, N.W.
                              Washington, D.C. 20229



HOLDING:

     Samples C and D are classified under subheading
9404.90.1000, HTSUSA, 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, of
cotton.  The textile category is 369.

     Samples A and B are classified under subheading
9404.90.2000, HTSUSA, 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.
Articles classified under this subheading are not subject to a
textile category.

     If the articles meet the definition of "goods originating in
the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA),
they are subject to different rates of duty under the United
States-Canada Free Trade Agreement Implementation Act of 1988.

     Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.

     The designated textile and apparel category may be
subdivided into parts.  If so, visa and quota requirements
applicable to the subject merchandise may be affected.  Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.


                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division