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NY C82281

December 30, 1998

CLA-2-RR:NC:TA:349 C82281


Ms. Susan Defoe
Affiliated Customs Brokers Limited
6470 Northam Drive
Mississauga, Ontario, Canada
L4V 1H9

RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for cushions; 19 CFR 102.21(c)(2); tariff shift; 19 CFR 102.19; NAFTA preference override; Article 509

Dear Ms. Defoe:

This is in reply to your letter dated December 2, 1997, on behalf of American Accents, requesting a classification, status under the NAFTA and country of origin determination for cushions which will be imported into the United States.


The subject merchandise consists of a cushion that measures approximately 17 inches square. The outer shell of the cushion is made from a 100 percent cotton gingham fabric. It is stuffed with a loose polyester fill. The fill in the sample submitted also contained very small amounts of shredded plastic foam. The edges of the cushion are finished with a 1/4 inch piping cord. The manufacturing operations for the cushion are as follows:

- cotton shell fabric is woven;
- fabric is cut;
- cushion shell is assembled by sewing, leaving a 6 inch unfinished opening along one side.

- loose polyester fill is formed.

- cushion shell is stuffed with the polyester filling; - the shell is sewn closed forming the completed cushion.


What are the classification, eligibility under NAFTA and country of origin of the subject merchandise?


The applicable subheading for the cushion will be 9404.90.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for 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 rate of duty will be 5.8 percent ad valorem. The rate of duty for 1998 will be 5.7 percent ad valorem.


The subject cushions undergo processing operations in Canada which is a country provided for under the North American Free Trade Agreement (NAFTA). General Note 12, HTSUSA, incorporates Article 401 of the North American Free Trade Agreement (NAFTA) into the HTSUSA. Note 12(a) provides, in pertinent part:

(i) Goods that originate in the territory of a NAFTA party under subdivision (b) of this note and that qualify to be marked as goods of Canada under the terms of the marking rules... and are entered under a subheading for which a rate of duty appears in the "Special" subcolumn followed by the symbol "CA" in parentheses, are eligible for such duty rate... .

Accordingly, the cushions at issue will be eligible for the "Special" "CA" rate of duty provided they are NAFTA "originating" goods under General Note 12(b), HTSUSA, and they qualify to be marked as goods of Canada. Note 12(b) provides in pertinent part:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or,

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

Accordingly, the subject merchandise qualifies as a good of Canada only if the good has been transformed in Canada such that the non-originating materials (cushion shells woven, cut and sewn in India) undergo the applicable change in tariff.

The subject cushions are classified in subheading 9404.90, HTSUSA. For merchandise classifiable in this heading subdivision (t), chapter 94, states that:

A change to subheading 9404.90 from any other chapter, except from headings 5007, 5111 through 5113, 5208 through 5212, 5309 through 5311, 5407 through 5408 or 5512 through 5516.

In the case of the cushions, when the non-originating materials from India enter Canada they are classifiable in heading 6307, HTSUSA. As heading 6307, HTSUSA, is not excepted by subdivision (t), the merchandise undergoes the requisite change in tariff. As such, the merchandise qualifies for the NAFTA preference. Assuming that the cushion qualifies to be marked as a good of Canada, it is entitled to the special "CA" duty rate, provided that a Certificate of Origin is completed and submitted in accordance with 19 CFR 181.11.


On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. 3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.

Paragraph (c)(1) states that "The 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." As the subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.

Paragraph (c)(2) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign materials 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) in pertinent part states that "The following rules shall 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 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.

The cotton shell fabric is the only fabric comprising the cushion and as this fabric is formed in a single country, that is, India, as per the terms of the tariff shift requirement, country of origin is conferred in India.

However, as stated in section 102.19(a):

Except in the case of goods covered by paragraph (b) of this section, if a good which is originating within the meaning of ?181.1(q) of this chapter is not determined under ?102.11(a) or (b) or ?102.21 to be a good of a single NAFTA country, the country of origin of such good is the last NAFTA country in which that good underwent production other than minor processing, provided that a Certificate of Origin (see ?181.11 of this chapter) has been completed and signed for the good.

As this merchandise qualifies as a NAFTA originating good, applying the terms of section 102.19(a), the country of origin of the subject cushions is Canada.


The subject cushion is classified in subheading 9404.90.1000, HTSUSA, which provides for pillows, cushions and similar furnishings, of cotton.

The country of origin of the cushion is Canada. It will be entitled to the NAFTA "CA" special duty rate of 0.6 percent ad valorem upon compliance with all applicable laws, regulations and agreements. In 1998 the NAFTA "CA" special duty rate will be free.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 181.100(a)(2). This section states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 181.100(a)(2), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted .

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist John Hansen at 212-466-5854.


Robert B. Swierupski

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