CLA-2 CO:R:C:S 557057 MLR
District Director
U.S. Customs Service
Lincoln Juarez Bridge, Bldg. #2
P.O. Box 3130
Laredo, Texas 78044-3130
RE: Internal Advice Request No. 66/92; Applicability of partial
duty exemption under HTSUSA subheading 9802.00.80 to
shoulder pads; sewing; trimming; tariff classification.
Dear Sir:
This is in response to your memorandum of September 4, 1992,
seeking internal advice regarding the applicability of subheading
9802.00.80, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), to shoulder pads from Mexico. Samples were
submitted with your request.
FACTS:
J.M.S. International, Inc. (hereinafter J.M.S.) receives a
contract from Met-Tex Inc. of Hoboken, New Jersey, for the
assembly of shoulder pads which are suitable for women's dresses.
One or more U.S. companies will supply J.M.S. with pre-cut cotton
knit fabric covers, flexible foam, and velcro strips. J.M.S.
will ship these materials to its Maquiladora operation (J.M.S. SA
de CV) in Acuna, Mexico.
Three sewing machine operations are required to make the
shoulder pads. At the first operation, an overlock machine
operator sews the pre-cut fabric together with a Yamato sewing
machine. At the second operation, the velcro is sewn on top of
the fabric with a double-needle Singer sewing machine. At the
third operation, the pad is sewn all around with a Yamato machine
using an overlock double stitch. Trimmers cut excess thread from
the fabric after each operation. Clippers clip, count and put
the shoulder pads in boxes. J.M.S. SA de CV will then ship the
finished shoulder pads, approximately 13 millimeters (mm) long
and 10mm wide, to Met-Tex, Inc. through Acuna, Mexico-Del Rio,
Texas.
ISSUES:
I. Whether the shoulder pads will qualify for the partial duty
exemption available under subheading 9802.00.80, HTSUSA,
when returned to the United States.
II. What is the proper classification of the shoulder pads under
the HTSUSA?
LAW AND ANALYSIS:
I. Formation of Shoulder Pads
Subheading 9802.00.80, HTSUSA, 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, HTSUSA, 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, HTSUSA, to that component. See 19 CFR
10.16(c).
The first operation of sewing the pre-cut fabric pieces
together, the second operation of sewing the velcro on top of the
fabric, and the third operation of sewing the edges of the pad
with an overlock double stitch are considered acceptable assembly
operations pursuant to 19 CFR 10.16(a), because in each instance,
two solid components are being joined (i.e., sewn) together.
Trimming the excess thread off of the fabric is considered an
acceptable operation incidental to assembly pursuant to 19 CFR
10.16(b)(4), which states that trimming, filing, or cutting off
of small amounts of excess materials is an acceptable incidental
operation. Packing the shoulder pads is permissible under 19 CFR
10.16(f).
II. Classification of Shoulder Pads
The shoulder pads at issue are constructed from an outer
shell of 100 percent cotton knit fabric into which a foam
padding, approximately 8mm thick, has been inserted. A Velcro-
like strip is sewn to the shoulder pads which enables them to be
easily attached or removed from the women's dresses into which
they will be inserted.
Heading 6117, HTSUSA, provides for "other made up clothing
accessories, knitted or crocheted; knitted or crocheted parts of
garments or of clothing accessories." Explanatory Note (3) to
heading 6117, HTSUSA, expressly provides for "shoulder or other
pads." As shoulder pads are specifically enumerated in the EN to
heading 6117, HTSUSA, there is no doubt that the subject
merchandise is classifiable within this provision of the
Nomenclature.
The determinative issue is whether the articles at issue are
classifiable as "clothing accessories" under subheading
6117.80.0010, HTSUSA, or as "parts of garments" under subheading
6117.90.0052, HTSUSA. The term "accessory" is not defined in the
tariff schedule or EN. Webster's New Collegiate Dictionary,
(1977), defines "accessory" as a thing of secondary or
subordinate importance or an object or device not essential in
itself but adding to the beauty, convenience, or effectiveness of
something else. Customs defined "accessory" in Headquarters
Ruling Letter (HRL) 088540 dated June 3, 1991, as an article that
is related to a primary article, and intended for use solely or
principally with a specific article. In the case before us, the
primary articles are articles of clothing (specifically, women's
dresses) and the shoulder pads serve to enhance the appearance of
the dresses and will be used principally, if not solely, with the
dresses. The shoulder pads at issue fully meet the definition of
accessory and, as they accessorize clothing, they are properly
classifiable under subheading 6117.80.0010, HTSUSA, as "other
accessories of cotton."
The articles at issue are not classifiable as "parts of
garments" because this term refers to articles that are integral
parts of whole garments (i.e., sleeves, lapels, collars, etc...).
Webster's New Collegiate Dictionary, (1977), describes "part" as
that which is "an essential portion or integral element of the
whole." The essential difference between a clothing part and a
clothing accessory is that the latter does not serve to complete
a garment, but rather serves to add to a garment's beauty or
effectiveness. A clothing accessory's use is optional and its
absence does not serve to render the article it accessorizes
incomplete. A clothing part completes a garment and makes it
whole. In other words, parts go to the completion of a garment,
accessories enhance a garment. An apt analogy is provided by
using a suit as an example; the sleeves are garment parts and
they are integral to the suit and make it complete whereas
shoulder pads merely enhance the fit of the suit and are not
essential components without which the suit is incomplete.
Moreover, we note that classification of the shoulder pads
at issue is not based on the fact that they are detachable. The
degree of permanency to which shoulder pads are affixed to
clothing will not determine their classification. As noted by
the court in Vilem B. Haan v. United States, 67 Cust. Ct. 104,
332 F.Supp. 182 (1971), "[W]hether a given article is a part of
another article depends on the nature of the so-called 'part' and
its function and purpose in relation to the article which it is
designed to serve." A shoulder pad, whether attached by a hook
and loop fastener or sewn to a garment, will never be integral to
the garment, it will merely enhance the garment's appearance.
Therefore, it is the fact that the shoulder pad is not an
integral component to the dress that determines its
classification as a clothing accessory, and not that the shoulder
pads are, in this instance, detachable.
HOLDING:
I. On the basis of the information and sample submitted, it is
our opinion that the operations performed abroad to create the
shoulder pads are considered proper assembly operations or
operations incidental to the assembly process. Therefore,
allowances in duty may be made under subheading 9802.00.80,
HTSUSA, for the cost or value of the U.S. fabricated components
incorporated into the shoulder pads when they are returned to the
United States, provided the documentary requirements of 19 CFR
10.24 are satisfied.
II. The subject merchandise is classifiable under subheading
6117.80.0010, HTSUSA, as an other made up clothing accessory,
knitted or crocheted, of cotton, dutiable at a rate of 15.5
percent ad valorem. The textile quota category is 359.
The designated textile and apparel categories may be
subdivided into parts. If so, the visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available we
suggest you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your local Customs office.
Due to the 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
Commercial Rulings Division
cc: Chief, Wearing Apparel Branch
New York Seaport