CLA-2 CO:R:C:V 555565 KAC

TARIFF NO: 9802.00.80

Mr. Neil Boyle
Wren Marketing
1916 Youngblood Street
Suite A
McLean, Virginia 22101

RE: Applicability of the duty exemption under subheading 9802.00.80, HTSUS, to weighted beach towels

Dear Mr. Boyle:

This is in response to your letter of January 11, 1990, requesting a ruling on the applicability of subheading 9802.00.80, Harmonized Tariff Schedules of the United States (HTSUS), to weighted beach towels to be imported from a Caribbean country.

FACTS:

Wren Marketing will be shipping U.S. components to a Caribbean country for assembly into weighted beach towels. The assembly operations to be performed include the following:

(1) cutting to length of proper-width cotton toweling; (2) cutting to length of beaded lead pellets; (3) sewing the cut-to-length beaded lead pellets to the edge of the cut-to-length towel; (4) marking the individual towels with washing instructions and country of origin; (5) attaching hangtags; and (6) packaging the towel for retail sale.

Consideration also is being given to the possibility of performing certain additional operations abroad. These include: (1) embroidering a logo, trademark or other identifying symbol onto the towel; and/or (2) sewing a patch or small label onto the towel.

Upon completion of the assembly operations the weighted beach towels will be imported into the U.S.

ISSUE:

Whether the weighted beach towels will qualify for the partial duty exemption available under HTSUS subheading 9802.00.80 when returned to the U.S.

LAW AND ANALYSIS:

HTSUS subheading 9802.00.80 provides a partial duty exemption for:

[a]rticles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubrication, and painting....

All three requirements of HTSUS subheading 9802.00.80 must be satisfied before a component may receive a duty allowance. An article entered under this tariff provision is subject to duty upon the full value of the imported assembled article, less the cost or value of such U.S. components, upon compliance with the documentary requirements of section 10.24, Customs Regulations (19 CFR 10.24).

Section 10.16(a), Customs Regulations (19 CFR 10.16(a)), provides that the assembly operation performed abroad may consist of any method used to join or fit together solid components, such as welding, soldering, riveting, force fitting, gluing, laminating, sewing, or the use of fasteners.

Operations incidental to the assembly process are not considered further fabrication operations, as they are of a minor nature and cannot always be provided for in advance of the assembly operations. However, any significant process, operation or treatment whose primary purpose is the fabrication, completion, physical or chemical improvement of a component precludes the application of the exemption under HTSUS subheading 9802.00.80 to that component. See, section 10.16(c), Customs Regulations (19 CFR 16(c)).

In United States v. Mast Industries, Inc., 515 F.Supp. 43, 1 CIT 188, aff'd, 69 CCPA 47, 668 F.2d 501 (1988), the court, in examining the legislative history of the meaning of "incidental to the assembly process," stated that:

[t]he apparent legislative intent was to not preclude operations that provide an "independent utility" or that are not essential to the assembly process; rather, Congress intended a balancing of all relevant factors to ascertain whether an operation of a "minor nature" is incidental to the assembly process.

The court then indicated that relevant factors included:

(1) whether the relative cost and time of the operation are such that the operation may be considered minor; (2) whether the operation is necessary to the assembly process; (3) whether the operation is so related to the assembly that it is logically performed during assembly; and (4) whether economic or other practical considerations dictate that the operation be performed concurrently with assembly.

The operations of sewing beaded weights and a patch or label onto the towel are considered acceptable assembly operations pursuant to 19 CFR 10.16(a). Cutting the proper-width towels and beaded weights to length are considered acceptable operations incidental to the assembly process pursuant to 19 CFR 10.16(b)(6), which states that cutting to length is an acceptable incidental operation. Marking the towels with washing instructions and country of origin, as well as attaching hangtags, will not preclude tariff treatment under HTSUS subheading 9802.00.80. See, C.S.D. 79-314 (1979), which found that "foreign stamping, markings, coding, or printing, when serving the purpose of origin markings, trademark, ... or instruction for use, would not preclude tariff treatment under item 807.00," Tariff Schedules of the United States (TSUS) (the precursor to HTSUS subheading 9802.00.80). Packaging the assembled towels into plastic bags for retail sale also would not preclude treatment under this tariff provision pursuant to 19 CFR 10.16(f).

However, the operation of embroidering the logo, trademark or other identifying symbol onto the towels is not considered an acceptable assembly operation. We have previously held that embroidering a single layer of fabric does not qualify as an acceptable assembly operation for purposes of HTSUS subheading 9802.00.80. See, Headquarters Ruling Letters 063098 dated June 7, 1979, and 071031 dated November 12, 1982. Moreover, the embroidery operation is not considered an incidental operation upon examination of the Mast requirements. We recognize that the

cost and time required to perform the embroidery operation represents only three and five percent, respectively, of the cost and time required to perform the entire assembly operation. However, we find that the embroidery operation is not necessary, nor is it related, to the assembly process. The embroidery is merely a decorative feature of the beach towel. Moreover, there is no indication from the information presented that economic or other practical considerations mandate that the embroidery operation be performed concurrently with the assembly. Therefore, we find that, on balancing the relevant factors, the embroidery operation in this case does not constitute an operation incidental to the assembly process.

HOLDING:

On the basis of the information presented, it is our opinion that the embroidery operation is neither an assembly operation nor an operation incidental to the assembly process. Therefore, towels with an embroidered design applied abroad will not be entitled to the partial duty exemption under subheading 9802.00.80, HTSUS. However, if no embroidery is performed abroad, the towels may be entered under this tariff provision, with allowances in duty for the cost or value of the U.S. cotton toweling, beaded lead pellets, and patches or labels, upon compliance with the documentary requirements of 19 CFR 10.24.


Sincerely,

Jerry Laderberg
Acting Director
Commercial Rulings Division