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HQ 951816


January 22, 1993

CLA-2 CO:R:C:T 951816 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.92.0025; 6307.90.9986; 9802.00.80

C.B. Lay, President
C.B. Lay Customs Brokers, Inc.
230 International avenue
P.O. Drawer JJ
Douglas, AZ 85608

RE: Nonwoven textile face mask and bikini/try-on panty; articles used to protect the hair and makeup of persons trying on garments; headings 6208 and 6307; Explanatory Notes to heading 6307; subheading 9802.00.80; applicability of partial duty exemption to goods assembled in Mexico from United States components; 19 CFR 10.16 and 10.24

Dear Mr. Lay:

This is in response to your letters of March 22, 1992, May 11, 1992, and August 26, 1992, on behalf of your client, Bob Fernandez & Sons, Inc., in which you requested a tariff classification for a "face mask" and a "bikini/try-on panty" under the Harmonized Tariff Schedule of the United States (HTSUS). In addition, you inquired as to the applicability of subheading 9802.00.80, HTSUS, to these articles as they are assembled abroad from components of U.S. origin.

FACTS:

The articles at issue consist of a disposable face mask, style no. FM-1, and disposable bikini/try on panties, style nos. TS-1 and TS-2, which are assembled in Mexico from materials of U.S. origin.

The face mask is composed of spun bonded nonwoven fabric with an elasticized opening at one end and a smaller opening at the other end. The face mask is used to protect the hair and make-up of a person trying on garments.

The bikini/try-on panty is also constructed of spun bonded nonwoven fabric and is in the shape of a "G" string with an elasticized waist band. It is used by people trying on wearing apparel, particularly swimwear.

These articles are provided by retail outlets to patrons wishing to try on garments. Garment modelers also use these articles at the time of putting on garments for modeling purposes. The face mask and bikini panty are disposable and are designed to be used only once.

The components of the face mask and bikini panty are all of U.S. origin. The base fabric is cut to size and shape in the U.S. and then exported to Mexico for assembly by sewing. The thread and the elastic utilized in the assembly process are exported from the U.S. in bulk and are cut to length at the time of assembly in Mexico. The finished articles are then returned to the U.S. for distribution and sale.

ISSUE:

What is the tariff classification of the face mask and the bikini/try-on panty under the HTSUS?

Whether the imported assembled articles are entitled to a partial duty exemption under subheading 9802.00.80, HTSUS?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may be applied, taken in order.

ISSUE #1

Heading 6307, HTSUS, is a residual provision which provides for other made up articles of textiles that are not provided for more specifically elsewhere in the nomenclature. In understanding the language of the HTS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not legally binding, comprise the official interpretation of the Harmonized System at the international level, The ENs to heading 6307 state the following on pages 867-8:

This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

It includes, in particular:

(23) Textile face-masks of a kind worn by surgeons during operations.

(24) Face-masks for protection against dust, odours, etc., not equipped with a replaceable filter, but consisting of several layers of nonwovens, whether or not treated with activated carbon or having a central layer of synthetic fibers.

The face mask at issue is not included more specifically elsewhere in the HTS. It is similar to the above described articles and is made of a textile material. Therefore, the face mask is classified in 6307.90.9986, HTSUS, which provides for "[o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther."

Heading 6208, HTSUS, provides for "[w]omen's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles." The subject bikini/try-on panty is classifiable in this heading. As it is a disposable article made of a man-made fiber it is classified in subheading 6208.92.0025, HTSUS, which provides for "[w]omen's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: [o]ther: [o]f man-made fibers: [d]isposable briefs and panties designed for one-time use."

ISSUE #2

Subheading 9802.00.80, HTSUS, provides a partial exemption from duty for articles assembled abroad in whole or in part of U.S.-fabricated components, provided the components (a) are exported in a condition ready for assembly without further fabrication; (b) do not lose their physical identity by change in form, shape or otherwise, and (c) are not 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 subheading 9802.00.80, HTSUS, must be satisfied before a component may receive a duty allowance. An article entered under subheading 9802.00.80, HTSUS, 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 documentation 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 operations performed abroad may consist of any method used to join or fit together solid components and may be preceded, accompanied, or followed by operations incidental to the assembly process. The sewing of the various cut fabrics and elastic together to form the mask and panties constitutes a qualified assembly, and the operation of cutting the thread and elastic to length is considered to be incidental to the assembly and not a further fabrication. see 19 CFR 10.16 (b)(6).

Based on the information and samples provided, we are of the opinion that the operations performed abroad to create the subject articles constitute acceptable assembly operations or operations incidental thereto under subheading 9802.00.80, HTSUS.

HOLDING:

The face mask is classified in subheading 6307.90.9986, HTSUS, which provides for "[o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther." It is dutiable at the rate of 7 percent ad valorem.

The bikini/try-on panty is classified in subheading 6208.92.0025, HTSUS, which provides for "[w]omen's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: [o]ther: [o]f man-made fibers: [d]isposable briefs and panties designed for one-time use." The rate of duty is 17 percent ad valorem.

Face masks and panties assembled abroad from precut fabric and other components of U.S. origin, including thread and elastic cut to length in connection with assembly, are entitled to classification under subheading 9802.00.80, HTSUS, with allowances in duty for the value of the U.S.-made fabric, elastic and thread, upon compliance with the documentation requirements of 19 CFR 10.24.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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