CLA-2 RR:TC:SM 560726 MLR
Mr. Jerry Armani
Mamiye Sales, Inc.
112 West 34th Street
Suite 1000
New York, NY 10120
RE: Applicability of partial duty exemption under HTSUS
subheading 9802.00.80 to children's wearing apparel;
embroidered patches; Special Access Program
Dear Mr. Armani:
This is in response to your letter of October 28, 1997,
requesting a ruling regarding the applicability of
subheading 9802.00.80, Harmonized Tariff Schedule of the
United States (HTSUS), to children's wearing apparel from
the Dominican Republic to which embroidered patches from
China are assembled. In a telephone conversation with a
member of my staff on December 12, 1997, you confirmed that
you are requesting a ruling regarding the applicability of
the Special Access Program. Sample patches and children's
shorts were submitted with your request.
FACTS:
It is stated that 100 percent polyester thread, non-woven non-knit 100 percent acrylic patch material, and non-woven non-knit 100 percent polyester interfacing material
for the back, all of Chinese origin, will be assembled
together in China to form a patch. Two samples of a patch
depicting a bear ("Pooh") character have been submitted with
the ruling request. It is stated that these patches will be
imported into the U.S. and together with U.S.-origin (i.e.
knit) cut-to-shape fabric components, thread, and labels
will be exported to the Dominican Republic, where they will
be assembled together into children's wearing apparel. A
sample of children's shorts were submitted with the ruling
request.
ISSUE:
Whether the children's wearing apparel to which the
subject patches will be assembled in the Dominican Republic
will qualify for the partial duty exemption available under
subheading 9802.00.80, HTSUS.
LAW AND ANALYSIS:
To qualify for the Special Access Program, products
must be eligible for entry under subheading 9802.00.80,
HTSUS. The requirements for participating in the Special
Access Program provide that all fabric components, with the
exception of findings, trimmings and certain elastic strips
not exceeding 25 percent of the cost of the components of
the assembled product, must be formed in the U.S. Such U.S.
formed fabric must also be cut to pattern or shape in the
U.S. Customs Directive Number 3500-12 dated September 2,
1986 provides as follows:
[f]indings trimmings, and elastic components of
the finished assembled products need not be of
United States origin. Products assembled in
participating Caribbean countries and made of U.S.
formed and cut fabric plus findings, trimmings,
and elastic of foreign origin may enter the United
States under the program. However, the total
value of such foreign findings, trimmings, and
elastic components shall not exceed 25 percent of
the cost of the components of the assembled
product. Products whose foreign findings, etc.,
exceed 25 percent do not qualify for the Program.
Examples of findings and trimmings are sewing
thread, hooks and eyes, snaps, buttons, "bow
buds", lace trim, zippers, including zipper tapes,
and labels.
The initial question which must be addressed is whether
the imported children's wearing apparel is eligible for the
partial duty exemption under subheading 9802.00.80, HTSUS.
Subheading 9802.00.80, HTSUS, 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, lubricating and painting.
All three requirements of subheading 9802.00.80, HTSUS, 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 cost or value of the
imported assembled article, less the cost or value of the
U.S. components assembled therein, upon compliance with the
documentary requirements of section 10.24, Customs
Regulations (19 CFR 10.24).
Section 10.14(a), Customs Regulations {19 CFR
10.14(a)}, states in part that:
[t]he components must be in condition ready for
assembly without further fabrication at the time
of their exportation from the United States to
qualify for the exemption. Components will not
lose their entitlement to the exemption by being
subjected to operations incidental to the assembly
either before, during, or after their assembly
with other components.
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, lamination, 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. See 19 CFR 10.16(a). 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 subheading 9802.00.80, HTSUS, to that
component. See 19 CFR 10.16(c).
While the operations to be performed in the Dominican
Republic in making the children's wearing apparel are not
described, we assume for purposes of this ruling that the
sewing and all other operations associated therewith are
acceptable assembly operations or operations incidental to
assembly. The next question which must be addressed is
whether the Chinese-origin patch depicting the "Pooh"
character assembled to the apparel is considered a "finding
or trimming" as that term is used for purposes of the policy
directives issued in connection with the Special Access
Program.
In Headquarters Ruling Letter (HRL) 560520 dated
September 22, 1997, Customs considered the eligibility of
jeans for entry under subheading 9802.00.90, HTSUS, to which
a patch label of Hong Kong origin with the words "TOMMY
HILFIGER" were sewn. The patch label was less than .5% by
weight of the finished article. It was found that since
the patch label was placed onto the garment to indicate the
brand name of the product and even though it added some
ornamentation to the jeans, it was not an essential part of
the structure of the jeans. Additionally, since the patch
label was a relatively small portion of the completed
garments and accounted for less than .5% of the weight of
the finished article, it was held that the patch label was a
finding or trimming for purposes of subheading 9802.00.90,
HTSUS.
In this case, the children's shorts depict a label,
stated to be of U.S. origin, with the words "Pooh & Tigger",
and the Chinese-origin patch at issue depicts the "Pooh"
character. Accordingly, as was the case in HRL 560520, the
patch symbolizes a brand and adds ornamentation to the
shorts. While Customs in HRL 560520 found that the patch
was considered a finding or trimming for purposes of
9802.00.90, HTSUS, we are of the opinion that this
determination is relevant in this case as 9802.00.90
considers the policy directives under the former Special
Regime Program which are similar to the policy
considerations of the Special Access Program. Therefore, we
find that provided the fabric components of the children's
wearing apparel will be both formed and cut in the U.S.,
such apparel will qualify for the Special Access Program
provided any findings, trimmings, and certain elastic strips
do not exceed 25 percent of the cost of the components of
the assembled apparel.
HOLDING:
On the basis of the information and samples submitted,
the children's wearing apparel will qualify for the partial
duty exemption under the Special Access Program when
returned to the U.S. from the Dominican Republic, provided
all of the fabric components, with the exception of the
findings, trimmings, and certain elastic strips not
exceeding 25 percent of the cost of the components of the
assembled apparel, are formed and cut to shape or pattern in
the U.S.
A copy of this ruling letter should be attached to the
entry documents filed at the time this merchandise is
entered. If the documents have been filed without a copy,
this ruling should be brought to the attention of the
Customs officer handling the transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division