CLA-2 RR:TC:SM 559856 DEC

Mr. Ron Gerdes
Sandler, Travis & Rosenberg
1341 G Street, N.W.
Washington, D.C. 20005-3105

RE: Eligibility of pantyhose for duty-free treatment under subheading 9802.00.90; Textile or apparel good; Modification of HRL 559961 and HRL 559363; HRL 558708; HRL 557875; HRL 553105; L'Eggs Products, Inc. v. United States, 13 CIT 40, 704 F.Supp. 1127 (CIT 1989); subheading 9802.00.80, HTSUS; HRL 040242; HRL 041987; HRL 555446; Modification of HRL 732257; 19 CFR 1016(b)(6); 19 CFR 10.16(c)(4); 19 CFR 10.14

Dear Mr. Gerdes:

This is in response to a request for a binding ruling dated April 17, 1996, on behalf of Sara Lee Hosiery, Incorporated (SLH), concerning the eligibility of pantyhose subjected to processing in Mexico for duty-free treatment under subheading 9802.00.90, Harmonized Tariff Schedule of the United States (HTSUS). In addition, you supplemented your original ruling request with additional submissions dated September 23, 1996, and January 7, 1997, which provided supplementary information Customs requested as a result of our November 7, 1996, meeting at our office at which you and SLH representatives were present. A sample of the pantyhose, their component parts, and two videotapes describing the processing were submitted for our examination.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed modification of Headquarters Ruling Letter (HRL) 559961, HRL 559363, and HRL 732257 was published on September 17, 1997, in the Customs Bulletin, Volume 31, Number 37/38.

FACTS:

You state that SLH exports the following U.S.-origin components to Mexico: knitted tubes with a finished knitted waistband at one end and an open toe at the other (the tubes are made of knitted man-made fiber yarns (spandex, nylon, polypropylene)), garment labels, gusset material on rolls, and sewing yarn. The sewing operation in Mexico is performed using a linked pair of automatic sewing machines. The machine operator begins the process by loading two tubes onto the automatic arms of the Gusset Line Closer portion of the machine. The machine will slit the tubes lengthwise from the top to the crotch area and then separate them in preparation for gusset insertion. The gusset material is a small amount of cloth material that is inserted into the pantyhose for improved fit and reinforcement. The gusset material is on a roll and the machine will cut it to length at an angle. A separator spreads the gusset material open while a set of clamps holds the two slit tubes together. The gusset material is then inserted between the two tubes and after the air is blown under the gusset material, the machine will sew one side of the gusset to one tube. Another sewing unit sews the tubes together at the slit, sews the second side of the gusset to the second tube, and sews a label approximately two inches from the end seam.

The sewn pantyhose will be transferred to a tube closing machine known as a Toe Closer machine. This machine will turn the pantyhose in-side out by means of a vacuum device, and then will position the tubes so that the machine may sew the open ends of the tubes closed. The pair of pantyhose is then deposited into a hosiery bag. Following inspection for sewing and knitting defects, the finished pantyhose are packed for bulk shipment to the U.S. You state that the entire assembly process takes approximately 90 seconds to complete.

ISSUE:

Are the imported pantyhose described above eligible for duty-free treatment under subheading 9802.00.90, HTSUS, after being subjected to the processing described above?

LAW AND ANALYSIS:

One of the special provisions contained in Annex 300-B of the North American Free Trade Agreement (NAFTA) is Appendix 2.4, which provides for the elimination of customs duties on textile and apparel goods that are assembled in Mexico from fabrics wholly formed and cut in the U.S. To implement this provision, a new tariff item was created in subheading 9802.00.90, HTSUS.

Subheading 9802.00.90, HTSUS, provides as follows:

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 permapressing after assembly as provided for herein.

"Textile and Apparel Good" under Subheading 9802.00.90, HTSUS

The initial question we must address is whether the pantyhose material knitted of man-made fiber yarns including spandex, nylon and polypropylene is considered a "textile and apparel good" under subheading 9802.00.90, HTSUS. Previous rulings on the issue of whether an article is a "textile and apparel good" for purposes of subheading 9802.00.90, HTSUS, have applied differing standards. HRL 559961, dated March 3, 1997, and HRL 559363, dated February 13, 1997, which addressed eligibility for certain articles for duty-free treatment under 9802.00.90, HTSUS, referenced section 102.21(b)(5), Customs Regulations (19 CFR 102.21(b)(5)) as the operative definition of a "textile and apparel good" for purposes of eligibility under subheading 9802.00.90, HTSUS. For purposes of implementing subheading 9802.00.90, HTSUS, however, Customs should have properly deferred to the terms provided for in the NAFTA. See HRL 558798, dated June 14, 1995, and HRL 557875, dated May 4, 1995.

Specifically, "textile and apparel goods" eligible for duty-free treatment under subheading 9802.00.90, HTSUS, are listed in Appendix 1.1 of Annex 300-B of the NAFTA. Chapter 61 of Appendix 1.1 includes various types of pantyhose the exact classification of which varies based on synthetic fiber yarn content. The subject pantyhose will qualify as a "textile and apparel good" since it is classified under heading 6115, HTSUS, and, therefore, eligible for duty-free treatment under subheading 9802.00.90, HTSUS. Customs hereby modifies HRL 559961 and HRL 559363 to incorporate the NAFTA definition of "textile and apparel goods" for purposes of subheading 9802.00.90, HTSUS, eligibility.

Acceptability of the Slitting and Sewing Operation under Subheadings 9802.00.80 and 9802.00.90, HTSUS

Customs has examined the slitting and sewing operation of pantyhose in various ruling letters some of which were issued to companies that have been acquired by SLH. For instance, Customs issued HRL 553105, dated December 31, 1984, to counsel on behalf of L'Eggs Products, Incorporated. SLH is an operating division of the Sara Lee Corporation which was formerly known as Consolidated Foods Corporation. On December 26, 1981, L'Eggs Products, Incorporated, was merged into Consolidated Foods Corporation and has since been a part of SLH.

In HRL 553105, Customs ruled that no duty allowance should be granted for the pantyhose tubes which were both slit and sewn together simultaneously. This position was challenged in the Court of International Trade, and the court, agreeing with the plaintiff, granted the duty allowance for U.S. articles assembled abroad. L'Eggs Products, Inc. v. United States, 13 CIT 40, 704 F. Supp. 1127 (CIT 1989).

In L'Eggs, supra, U.S.-origin components of pantyhose which consisted of two tubes, sewing yarn or thread, the gusset, and the garment labels were exported to be assembled. Customs had allowed the cost of all of the components except the tubes to be deducted from the appraised value pursuant to item 807.00, Tariff Schedules of the United States (TSUS) (now subheading 9802.00.80, HTSUS). A review of the court documents in the L'Eggs case reveals that the processing of the nylon tubes abroad included the use of an "overedge" sewing machine which slit both tubes and sewed them together. See Attachment to Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Cross-Motion for Summary Judgment which describes the step-by-step processes performed on the exported components. Thus, the court was cognizant of the cutting and slitting operations performed on the pantyhose components. In finding for the plaintiff, the court concluded that the nylon tubes were fully fabricated components exported in condition ready for assembly, and the slitting and sewing operation was not cited as a further fabrication operation which would render the tubes ineligible for partial duty relief.

Prior to the L'Eggs decision, Customs issued HRL 040242, dated June 25, 1975, to counsel for Hanes Corporation which also is now owned by SLH. In HRL 040242, Customs determined that pantyhose tubes that were simultaneously slit through the U-shaped crotch area and seamed with overedge stitching was more than a mere trimming of a finished component. In addition, the closing of the open toe ends of the tubes which involved the sewing of one part of the pantyhose tube onto itself was determined not to be an assembly since it was not the fitting together of two or more components. Subsequently, Customs issued HRL 041987, dated September 19, 1975, which was issued to the same counsel on behalf of the Hanes Corporation. In this ruling, however, the Hanes Corporation proposed to perform the slitting operation at issue in HRL 040242 in the U.S. prior to the exportation of the tubes. Customs reversed its position in HRL 040242 and determined that the toe-closing operation did not preclude the partial duty allowance afforded U.S. articles that are sent abroad for assembly.

Subsequently, in HRL 555446, dated November 6, 1989, Customs issued another ruling on the eligibility of pantyhose for the partial duty exemption under subheading 9802.00.80, HTSUS. In HRL 555446, the toe ends of two tubes were sewn closed, the top portions of the tubes were slit lengthwise from the waistband to the crotch area, the tubes were then sewn together where the slit occurred, except where the crotch patch was inserted, and the crotch patch was then to be sewn into the crotch area, forming the completed article. Citing L'Eggs and United States v. Oxford Industries, Inc., Customs determined that the tube closing operation constituted an assembly operation, and that the lengthwise slitting operation was a minor operation and was deemed to constitute an incidental operation. In addition, examination of the samples submitted in that case showed that the knitted tube and crotch patch components did not lose their physical identity in the assembly operation, and that they were not otherwise advanced in value or improved in condition except by assembly or operations incidental thereto.

In HRL 732257, dated May 16, 1990, Customs revisited the eligibility of pantyhose under subheading 9802.00.80, HTSUS. In HRL 732257, the manufacturing process consisted of knitting "tubes" of lycra and/or nylon in the U.S. and a separate patch for the crotch area. These separate pieces were then shipped to Mexico where the tubes were cut from the top opening to the crotch area, the separate pieces were sewn together and, in most cases, the assembled pantyhose were dyed. Thereafter, the assembled pantyhose were folded around a piece of cardboard, placed in a cellophane bag and shipped back to the U.S. Customs held that the components failed to meet the requirements of clause (a) of the tariff provision because they were not exported in a condition ready for assembly without further fabrication. Cutting the pantyhose tube was not deemed to be an acceptable assembly operation or operation incidental to assembly, but was determined to be a further fabrication of the pantyhose. The cutting operation was deemed not simply cutting a component to length, but was similar to cutting fabric for a specific pattern in order to sew the newly cut components together. See 19 CFR 10.16(c)(2). Furthermore, the dyeing operation disqualified the pantyhose from subheading 9802.00.80, HTSUS, treatment pursuant to 19 CFR 10.16(c)(4), which states that chemical treatment of components or assembled articles, such as dyeing, to impart new characteristics is not a proper operation incidental to the assembly process. Therefore, the pantyhose did not qualify for the duty exemption available under subheading 9802.00.80, HTSUS.

In our opinion, the L'Eggs (1989) decision which was issued 14 years after HRL 040242 has effectively revoked the position articulated in HRL 040242 which stated, in part, that the simultaneous slitting and sewing operation precluded the eligibility of the pantyhose tubes from the partial duty allowance. HRL 732257 which was issued in 1990 is inconsistent with the Court of International Trade's decision in L'Eggs and HRL 555446. HRL 732257 is hereby modified to reflect the position which implicitly flows from L'Eggs that the slitting and sewing of pantyhose tubes alone is not a further fabrication rendering the pantyhose tubes ineligible for partial duty relief pursuant to subheading 9802.00.80, HTSUS. We note that the result in HRL 732257 does not change because the assembled pantyhose were also dyed. Customs determined that the dyeing is not a proper operation incidental to the assembly process pursuant to 19 CFR 10.16(c)(4). Therefore, the pantyhose in HRL 732257 were properly precluded from the duty allowance available under subheading 9802.00.80, HTSUS.

Turning to the issue of eligibility of the pantyhose tubes under subheading 9802.00.90, HTSUS, we are mindful of the fact that because 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. As distinguished from subheading 9802.00.80, HTSUS, however, it is noted that the new statute requires that all fabric components be formed and cut in the U.S., and that only such components, in whole or in part, must satisfy the three conditions set forth in (a) - (c) of the statute. HRL 558708, dated June 14, 1995.

Accordingly, it is our position that consistent with L'Eggs and HRL 555446, the slitting and sewing operations do not constitute a further fabrication of the nylon tubes. Rather, this operation is an operation incidental to the assembly of the pantyhose. See 19 CFR 10.14(a). 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, although they may precede, accompany or follow the actual assembly operation. 19 CFR 10.16(a).

Acceptability of the Cutting of the Gusset Material under Subheadings 9802.00.80 and 9802.00.90, HTSUS

The next issue in this case is whether the cutting of the gusset material in Mexico at an angle so that the cut size conforms to the requirements of the pantyhose design precludes the eligibility of the pantyhose for subheading 9802.00.90, HTSUS, treatment on the ground of being "not incidental to the assembly process." Based on our review of the history of subheading 9802.00.90, HTSUS, and the stated objective that subheading 9802.00.90, HTSUS, was intended as a successor provision to subheading 9802.00.80, HTSUS, it is our position that 19 CFR 10.16 is instructive with regard to the types of operations that Customs will find to be incidental to the assembly. Section 10.16 states, in pertinent part, that:

(b) Operations incidental to the assembly process. Operations incidental to the assembly process whether performed before, during, or after assembly, do not constitute further fabrication, and shall not preclude the application of the exemption. The following are examples of operations which are incidental to the assembly process: . . . (6) Cutting to length of wire, thread, tape, foil, and similar products exported in continuous length; separation by cutting of finished components, such as prestamped integrated circuit lead frames exported in multiple unit strips . . ..

Notwithstanding the fact that the cotton gusset material is cut at an angle, the cutting-to-length of the continuous rolls of the gusset material is a straight cutting operation which is not cutting to shape or a further fabrication that would exceed the parameters of 19 CFR 10.16(b)(6). Accordingly, we find that the cutting operation of the gusset material is an operation incidental to the assembly and should not preclude its eligibility under subheading 9802.00.90, HTSUS.

HOLDING:

Provided that the pantyhose components are formed and cut in the U.S. prior to export to Mexico, the pantyhose components assembled in Mexico as described above may be entered free of duty under subheading 9802.00.90, HTSUS, since they are exported in condition ready for assembly without further fabrication, have not lost their physical identity by change in form, shape, or otherwise, and have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process.

HRL 559961, HRL 559363, and HRL 732257 are hereby modified.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decision pursuant to section 625 does not constitute a change of practice of position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

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