CLA-2 RR:TC:SM 560011 DEC
Mr. Michael E. Roll
Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693
RE: Applicability of subheading 9802.00.90, HTSUS, to reusable
operating room gown; 19 CFR 10.14; 19 CFR 10.16; Special
Regime Program
Dear Mr. Roll:
This is in response to your letter of August 6, 1996, on
behalf of Allegiance Healthcare Corporation (Allegiance),
requesting a ruling on the classification and eligibility for
preferential duty treatment of a reusable operating room gown
under subheading 9802.00.90, Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The reusable operating room gown is made of fabric that is
99% woven polyester and 1% carbon yarn. The cuffs of the garment
are made of 100% polyester. A sample was enclosed with your
ruling request. The fabric used to make the gown is formed and
cut in the U.S. The fabric components consist of one body panel,
two back panels, and two sleeves. The components are calendared
in the U.S. with heated pressure to seal the fabric and form a
tight barrier resistant to fluids, particles, and bacteria. In
addition to the fabric pieces described above, 2 cuffs (U.S.
origin), 2 ties (U.S. origin), a neck-binding (U.S. origin), a
size label (U.S. origin), and a bar code label (not of U.S.
origin) are used to produce the gown. You state that the non-U.S. origin bar code label accounts for 1.7% of the cost of the
article.
The ties, neck-binding, and bar code label are cut-to-width,
spooled, and shipped to Mexico from the U.S. In Mexico, they are
unspooled, cut-to-length, and
assembled with fabric components, cuffs, and the size labels.
The assembly steps performed in Mexico include the following:
1. Close side seams 7. Set bar code label
2. Set belts 8. Set and cut neck binding
3. Set and close sleeves 9. Finish front
dimension
4. Set cuffs 10. Bar tack belts and neck
binding
5. Hem backs and bottom 11. Set snaps
6. Insert size label
You state that the cuffs and the size labels are sent to Mexico
in condition ready for assembly. After assembly, the gowns are
placed in a polybag and box, and then shipped to the U.S.
ISSUES:
1. What is the proper classification of the reusable
operating room gown?
2. Whether the subject reusable operating room gown is
eligible for duty-free treatment under subheading 9802.00.90,
HTSUS, when returned to the U.S.
LAW AND ANALYSIS:
I. Classification
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI).
GRI(1) requires that classification be determined according to
the terms of the headings and any relative section or chapter
notes. Where goods cannot be classified solely on the basis of
GRI(1), the remaining GRI will be applied, in the order of their
appearance.
Heading 6211, HTSUS, provides for, inter alia, other
garments. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN) to heading 6211, HTSUS, state,
in relevant part, that "the Explanatory Note to heading 61.14
concerning other garments apply, mutatis mutandis, to the
articles of this heading."
The EN to heading 6114, HTSUS, states that this heading
(other garments) includes garments not included more specifically
in the preceding headings of this chapter. This heading
includes, inter alia, "(1) Aprons, boiler suits (coveralls),
smocks and other protective clothing of a kind worn by mechanics,
factory workers, surgeons, etc."
The submitted garments appear to be designed for use in an
operating room for the purpose of affording protection to both
the patient and medical personnel from fluids, particles, and
bacteria during operating room procedures. The sample garments
are similar to the articles encompassed under heading 6114,
HTSUS. Since the garments at issue are made of a woven polyester
fabric, the applicable heading is 6211, HTSUS, which encompasses
the types of garments noted in EN(1) of heading 6114, HTSUS.
The submitted sample is classified in subheading
6211.43.0091, HTSUS, which provides for track suits, ski-suits
and swimwear; other garments; other garments, women's or girls':
of man-made fibers: other. New York Ruling Letter (NYRL) 851355,
dated May 4, 1990.
II. Subheading 9802.00.90, HTSUS
Appendix 2.4 of Annex 300-B of the NAFTA, provides that:
[o]n January 1, 1994, the U.S. shall eliminate customs
duties on textile and apparel goods that are assembled
in Mexico from fabrics wholly formed and cut in the
United States and exported from and reimported into the
United States under:
(a) U.S. tariff item 9802.00.80.10; or
(b) Chapter 61, 62, or 63 if, after such
assembly, those goods that would have qualified
for treatment under 9802.00.80.10 have been
subject to bleaching, garment dyeing,
stone-washing, acid-washing or perma-pressing.
Thereafter, the U.S. shall not adopt or maintain any
customs duty on textile and apparel goods of Mexico
that satisfy the requirements of subparagraph (a) or
(b) or the requirements of any successor provision to
U.S. tariff item 9802.00.80.10.
Consequently, subheading 9802.00.90, HTSUS, was created to
provide for the duty-free entry of:
Textile and apparel goods, assembled in Mexico in which
all fabric components were wholly formed and cut in the
United States, provided that such fabric components, in
whole or in part, (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;
provided that goods classifiable in chapters 61, 62, or
63 may have been subject to bleaching, garment
dyeing, stone-washing, acid- washing or perma-pressing
after assembly as provided for herein.
The initial question is whether the operating room gowns are
considered a "textile and apparel good" under subheading
9802.00.90, HTSUS. In the instant case, the operating room gowns
are classified in Chapter 62. Thus, the subject operating room
gown will qualify as a "textile and apparel good."
Since subheading 9802.00.90, HTSUS, was intended as a
successor provision to subheading 9802.00.80, HTSUS, with respect
to certain textile and apparel goods assembled in Mexico, the
regulations under subheading 9802.00.80, HTSUS, may be
instructive in determining whether a good is eligible for the
beneficial duty treatment accorded by subheading 9802.00.90,
HTSUS. (In this regard, however, as distinguished from
subheading 9802.00.80, HTSUS, it is noted that the new statute
requires only that all fabric components be formed and cut in the
U.S., and that only such components need be exported from the
U.S. in condition ready for assembly without further
fabrication.)
Under section 10.14(a), Customs Regulations (19 CFR
10.14(a)), components will not lose their entitlement to the
benefits of subheading 9802.00.80, HTSUS, by being subjected to
operations incidental to the assembly before, during, or after
the assembly with other components. Pursuant to section
10.16(a), the assembly operations performed abroad may consist of
any method used to join or fit solid components, such as welding,
soldering, riveting, force fitting, gluing, laminating, sewing,
or the use of fasteners, and may be preceded, accompanied, or
followed by operations incidental to the assembly process.
Examples of operations incidental to the assembly process include
trimming, filing, or cutting off of small amounts of excess
materials, and cutting to length of wire, thread, tape, foil and
similar products exported in continuous length. (19 CFR
10.16(b)(4) and (b)(6)).
Under the facts presented, we find that the following
operations performed in Mexico clearly fall within the purview of
19 CFR 10.16(a):
1. Close side seams 7. Set bar code label
2. Set belts 8. Set and cut neck binding
3. Set and close sleeves 9. Finish front
dimension
4. Set cuffs 10. Bar tack belts and neck
binding
5. Hem backs and bottom 11. Set snaps
6. Insert size label
Accordingly, the articles will be subjected to eligible assembly
operations in Mexico.
The ties, neck binding, and bar code labels that are cut-to-width, spooled, and shipped to Mexico where they will be
unspooled, cut-to-length, and then assembled with the various
fabric components, cuffs, and size label will not disqualify the
operating room gowns from eligibility for subheading 9802.00.90,
HTSUS, treatment. As stated above, operations incidental to the
assembly process include cutting to length of wire, thread, tape,
foil and similar products exported in continuous length. (19 CFR
10.16(b)(6)).
In view of the fact that the enactment of subheading
9802.00.90, HTSUS, specifically was intended to extend duty-free
and quota-free status to all goods assembled in Mexico which
previously were eligible for entry under the Special Regime
Program administered under U.S. tariff item 9802.00.8010, HTSUS,
it is Customs view that all of the policy directives implementing
this program should be considered applicable in the
administration of subheading 9802.00.90, HTSUS. One such policy
under the Special Regime Program included the allowance of
"findings, trimmings, and certain elastic strips of foreign
origin" to be incorporated into the assembled good "provided they
do not exceed 25 percent of the cost of the components of the
assembled product." Examples of findings and trimmings are
sewing thread, hooks and eyes, snaps, buttons, "bow buds", lace
trim, zippers, including zipper tapes, and labels. See 53 Fed.
Reg. 15726 (May 3, 1988). The foreign origin bar code label is
expressly provided for as a finding or trimming. Since it only
accounts for 1.7% of the cost of the product, it will not
disqualify the operating room gowns from eligibility for
subheading 9802.00.90, HTSUS, treatment.
HOLDING:
1. The submitted sample is classified in subheading
6211.43.0091, HTSUS.
2. Since the operations performed in Mexico in connection
with the fabric components are acceptable assembly operations or
operations incidental to such assembly, the imported reusable
operating room gowns, as described above, will qualify for
duty-free treatment under subheading 9802.00.90, HTSUS.
A copy of this ruling letter should be attached to the entry
documents filed at the time the goods are 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
Tariff Classification Appeals
Division