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HQ 560011

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December 13, 1996

CLA-2 RR:TC:SM 560011 DEC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9802.00.90

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

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

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

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See also:

• Tariff No.: 6211.43.00 - Women's or girls' track suits or other garments nesoi, not knitted or crocheted, of man-made fibers
• Tariff No.: 9802.00.80 - U.S. articles assembled abroad, which have not lost their physical identity or have not advanced in value or improved in condition abroad
• Tariff No.: 9802.00.90 - Textile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, etc.