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NY I83878

July 26, 2002

CLA-2-RR:NC:TA:349 I83878


Mr. Ken Jaremco
RTI Research Ltd.
8440 – 206 Street
Langley, British Columbia
Canada V2Y 2B6

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

Dear Mr. Jaremco:

This is in reply to your letter dated June 21, 2002, requesting a classification, status under the NAFTA and country of origin determination for kayak seat cushions which will be imported into the United States.


The subject merchandise, referred to as Styles RTI-1218 and RTI-1219, are kayak seat cushions. The submitted samples are composed of a solid piece of plastic foam covered with a textile fabric. The woven nylon fabric is coated with plastics. Style RTI-1218 is a two piece seat cushion. The main component measures approximately 16 x 21 inches and the second piece is approximately 6.5 x 13 inches. The main cushion has four grommets used to attach the cushion to the kayak seat. The second piece has two plastic lash tabs and hook and loop strips. It is designed to slip over a kayak seat back and be secured by the hook and loop strips. Style RTI-1219 is a one-piece cushion measuring approximately 14.5 x 26.5 inches. It will cover both the back and seat portions of the kayak seat. Four grommets are used to attached the cushion to the kayak.

You have stated that the nylon cloth, grommets and labels were wholly produced in Canada while the plastic foam and sewing thread are wholly produced in the United States. The hook and loop tape and plastic lash tabs used in Style RTI-1218 are made in Indonesia and Korea. The various components are cut, sewn and assembled into seat cushions in Canada.


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


The applicable subheading for the kayak seat cushions will be 9404.90.2000, 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: other. The general rate of duty will be 6 percent ad valorem.

Subheading 9404.90.2000, HTSUSA, is not assigned a textile category designation and item classified therein are not subject to quota or visa restrictions.


The subject seat cushions undergo processing operations in the United States and Canada which are countries provided for under the North American Free Trade Agreement (NAFTA). The seat cushions will be eligible for the NAFTA preference if they originate in the territory of a NAFTA party and qualify to be marked as a good of Canada. As Style RTI-1219 is made in the territory of Canada using materials that originated in the United States and Canada, it satisfies the requirements of General Note 12(b), HTSUSA. Style RTI-1218 is made from originating and non-originating materials. To qualify for the preference, the non-originating materials must undergo a change in tariff classification described in subdivision (t) to General Note 12, HTSUSA. The cushion is classified in subheading 9404.90, HTSUSA. For merchandise classifiable in this heading, subdivision (t), chapter 94, rule 7, 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.

The non-originating plastic lash tabs and the narrow fabric hook and loop tapes undergo the requisite change in classification. Both seat cushions are eligible for the NAFTA preference. Assuming the seat cushions qualify to be marked as a good of Canada, they are entitled to the special "CA" duty rate of Free, 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.

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 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:
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 chair pad, 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 seat cushion 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 comprising both seat cushions is formed in a single country, that is, Canada, as per the terms of the tariff shift requirement, the country of origin of the kayak seat cushions is conferred in Canada.

You have also inquired as to the marking of these cushions, which are sold to the manufacturer of kayaks in the United States. Specifically, you ask if the marking of the shipping container rather than the individual items would be sufficient for origin marking purposes as the cushions are to be used in the production of a finished kayak in the United States. Section 134.35(b) of the Customs Regulations (CR) states:

Goods of a NAFTA Country. A good of a NAFTA country which is to be processed in the United States in a manner that would result in the good becoming a good of the United States under the NAFTA Marking Rules is excepted from marking. Unless the good is processed by the importer or on its behalf, the outermost container of the good shall be marked in accord with this part.

You have supplied detailed information on the manufacturing operations performed in the United States to produce a finished kayak. The seat cushions, as a result of the further processing performed in the U.S., become an article of U.S. origin under Part 102 of the regulations. Accordingly, the imported seat cushions, which are goods of a NAFTA country that become U.S. articles as a result of being further processed in the U.S., are excepted from marking and only the outermost containers are required to be marked with the country of origin "Canada."


The country of origin of the kayak seat cushions is Canada. The cushions are entitled to the NAFTA "CA" duty rate of Free upon compliance with all applicable laws, regulations and agreements.

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 637-733-3043.


Robert B. Swierupski

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