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NY E88018




October 27, 1999

CLA-2-RR:NC:TA:349 E88018

CATEGORY: CLASSIFICATION

Ms. Nancy Eisen
Mountain Hard Wear
950-A Gilman Street
Berkeley, CA 94710

RE: Classification and country of origin determination for a foam sleeping pad with textile cover; 19 CFR 102.21(c)(2); tariff shift

Dear Ms. Eisen:

This is in reply to your letter dated September 27, 1999, requesting a classification and country of origin determination for a foam sleeping pad with textile cover which will be imported into the United States.

FACTS:

The subject merchandise consists of a foam sleeping pad with a fabric cover. The pad is made from two layers of polyurethane foam that have been laminated together. The top open cell layer has an egg crate shaped surface and will be between 1 and 1.75 inches thick while the closed cell bottom layer will be 3/8 inch thick. The pad is shaped for a mummy style sleeping bag. It is cut to specific sizes including 20 x 50, 20 x 60, 20 x 72 and 25x 77. The fabric cover or sleeve is made from 100 percent nylon woven fabrics. The fabric sleeve conforms to the shape of the pad and has a zippered opening around the top edge. A buckle and strap are attached to the fabric sleeve allowing the pad and cover to be rolled and secured for transport or storage.

The manufacturing operations for the sleeping pad with cover are as follows:

Taiwan:
-nylon fabrics are woven.
-fabric is shipped to Viet Nam.
-open cell and closed cell plastic foam layers are formed. -foam layers are laminated and cut to size and shape.

Viet Nam:
-nylon fabrics are cut and sewn forming the sleeve. -finished sleeves are shipped to Taiwan.

Taiwan:
-foam pads are inserted into the fabric sleeves. -hangtags are applied.
-sleeping pads are packed for shipment.

ISSUE:

What are the classification and country of origin of the subject merchandise?

CLASSIFICATION:

The applicable subheading for the foam sleeping pad and cover will be 9404.90.2000, Harmonized Tariff Schedule of the United States Annotated (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. The rate of duty will be 6 percent ad valorem. This subheading is not assigned a textile category designation and merchandise classified therein are not subject to quota or visa restrictions.

Textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web Site at WWW.CUSTOMS.GOV. In addition, textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment.

COUNTRY OF ORIGIN - LAW AND ANALYSIS:

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.

We note that as written, the listed headings and subheadings under 19 CFR 102.21(b)(5) include subheading 9404.90.10, HTSUSA, but fail to include subheading 9404.90.20, HTSUSA, for purposes of the section 102.21 rules of origin. The omission of that subheading was recently addressed in Headquarters Ruling Letter (HQ) 962122 dated October 1, 1998 which stated that: "...it is Customs position that the omission of subheading 9404.90.20, HTSUS, was an oversight. In that respect we direct your attention to the statute pertaining to the rules of origin, 19 U.S.C. section 3592, which states explicitly under (b)(2), Special rules, that:

(A) the origin of a good that is classified under one of the following HTS headings or subheadings shall be determined under subparagraph (A),(B), or (C) of paragraph (1), as appropriate: 5609, 5807, 5811, 6209.20.5040, 6213, 6214, 6301, 6302, 6303, 6304, 6305, 6306, 6307.10, 6307.90, 6308, or 9404.90; and (Emphasis added)

As the statute does not break out subheading 9404.90, HTSUS, it is Customs position that the statute takes precedence over the regulation. That is to say, Customs cannot exclude by regulation what is specifically included by statute. Accordingly, in determining the origin of the subject cushions, the 102.21 rules of origin are applicable."

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.

As the fabric for the sleeping pad sleeve was formed in a single country, that is, Taiwan, as per the terms of the tariff shift requirement, country of origin is conferred in Taiwan.

HOLDING:

The foam sleeping pad and cover are classified in subheading 9404.90.2000, HTSUSA, which provides for other pillows and cushions.

The country of origin of the foam sleeping pad and cover is Taiwan. As the above subheading is not currently assigned a textile category designation, products classified therein are not subject to quota and visa restrictions.

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 177.9(b)(1). This sections 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 177 of the Customs Regulations (19 C.F.R. 177). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), 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 in accordance with 19 CFR 177.2.

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 212-637-7078.

Sincerely,

Robert B. Swierupski
Director,

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