CA-2 R:C:M 957167 DFC

Mr. Keith Burdette
K.C. Burdette Company, Inc.
45 John Street
Suite 903
New York, NY 10038

RE: Footwear parts; Uppers; Laces; Composite goods; Sets; Essential character; Country of origin marking; Articles assembled abroad; United States v. Mast Industries; Rudolph Miles v. United States; HRL's 955499, 061429, 956766, 555394`

Dear Mr. Burdette:

In a letter dated October 14, 1994, on behalf of Daedo America Corp., along with a copy of a letter dated October 13, 1994, with attachments, from Daedo America, you inquired as to the tariff classification and quota status under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of textile uppers with shoe laces from China. You also ask whether the merchandise qualifies for duty-free treatment under subheading 9802.00.80, HTSUSA, and whether China is the country of origin. Samples were submitted for examination.

FACTS:

Based on the information provided, Daedo America Corp. intends to purchase U.S.-origin fabric from a supplier and ship the fabric to another company in the U.S. who will laminate foam onto the nylon fabric to produce "crosslink foam." The laminated material will then be shipped to another U.S. company who will cut the material into component pieces which are suitable to form the shoe upper. After the cutting operation, the cut components will be shipped to China, where they will be sewn together, along with other Japanese-origin components (i.e., sponge foam, spenco (nylon tricot) nylon bias, eyelets, lace, polyurethane), to form the completed shoe upper [open-bottomed upper].

Based upon a telephone conversation on January 9, 1995, between a representative from Daedo America Corp. and a member of my staff, it was reported that an automatic eyelet fitting machine makes the holes and attaches the eyelets in one operation. It was also reported that the time involved to punch holes in the footwear upper and insert the eyelets is very insignificant as compared to the total time required to assemble the footwear upper. Moreover, that the cost of punching the holes and inserting the eyelets represents 3.1 percent of the cost of the U.S. fabricated components.

You ask whether the following phrases will satisfy the country of origin marking requirements:

1) Upper assembled in China of U.S. components, balance assembled in U.S.A.

2) Upper assembled in China of U.S. components, bottom made/attached in U.S.A.

3) Upper made in China, sole made in U.S.A., assembled in U.S.A.

ISSUES:

Are the textile uppers with inserted shoelaces considered composite goods or sets within the purview of GRI 3(b), HTSUSA?

Are the shoelaces separately classifiable?

Are the textile uppers eligible for the partial duty exemption under subheading 9802.00.80, HTSUSA, when imported into the U.S.?

Are the proposed markings set forth above acceptable country of origin markings for footwear uppers assembled in China from U.S. and Japanese-origin components?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Composite Goods/Sets

GRI 2(b), HTSUSA, provides in part that '[t]he classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3."

GRI 3, HTSUSA, provides, in pertinent part, as follows:

3. When by application of Rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods. . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. The shoe laces and the textile uppers are prima facie classifiable under separate subheadings of the tariff schedule which describe only a portion of the materials in the articles as a whole. Following GRI 3(a), HTSUSA, subheadings 5609.00.3000,HTSUSA, and 6406.10.9040, HTSUSA, are regarded as equally specific which requires application of GRI 3(b), HTSUSA, governing the classification of composite goods and goods put up in sets for retail sale. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUSA, although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 FR 35128 (August 23, 1989). EN (IX) to GRI 3(b), at page 4, reads, as follows:

(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

The shoe laces and the textile uppers do not qualify as composite goods within the purview of GRI 3(b), HTSUSA, because they are not specially adapted to each other. Further, it is doubtful that the uppers and laces "form a whole which would not normally be offered for sale in separate parts." The best description for this import is "uppers with shoelaces in them." EN (X) to GRI 3(b) at p. 4, provides that for the purposes of this rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are prima facie classifiable in different headings . . . ;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The shoelaces and the textile uppers do not qualify as "goods put up in sets for retail sale" because they are not packaged for retail sale.

In view of the foregoing it is our position that the uppers without bottoms are separately classifiable, assuming that they are of man-made fibers, under subheading 6406.10.9040, HTSUSA. The shoelaces are separately classifiable, assuming that they are of man-made fibers, under subheading 5609.00.3000, HTSUSA. See, HRL 956766 dated March 3, 1995.

Subheading 9802.00.80, HTSUSA

HTSUS 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 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, 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 this tariff provision 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 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, laminating sewing, or the use of fasteners. (Emphasis added).

The foreign operations that entail attaching two or more components together by sewing is considered an acceptable assembly operation. Therefore, the operations involving sewing the footwear upper components together with other Chinese-origin components to produce the completed footwear uppers are acceptable assembly operations within the meaning of subheading 9802.00.80, HTSUSA. Inserting the eyelets into the uppers is also an acceptable assembly operation.

The question presented is whether the operation of punching holes in the cut-to shape footwear upper components is incidental to the assembly of the footwear uppers.

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 section 10.16(a), Customs Regulations (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, HTSUS, to that component. See, 19 CFR 10.16(c).

In United States v. Mast Industries, Inc., 515 F.Supp. 43, 1 CIT 188, aff'd, 69 CCPA 47, 668 F.2d501 (1988), the court, in examining the legislative history of the meaning of "incidental to the assembly process," stated that:

[t]he apparent legislative intent was to not preclude operations that provide an "independent utility" or that are not essential to the assembly process; rather, Congress intended a balancing of all relevant factors to ascertain whether an operation of a " minor nature" is incidental to the assembly process.

The court then indicated that relevant factors included:

(1) whether the relative cost and time of the operation are such that the operation may be considered minor; (2) whether the operation is necessary to the assembly process; (3) whether the operation is so related to the assembly that it is logically performed during assembly; and (4) whether economic or other practical considerations dictate that the operation be performed concurrently with assembly.

In Rudolph Miles v. United States, C.A.D. 1202, 65 CCPA 32, 567 F.2d 979 (1978) rev'g, C.D. 4689, 78 Cust. Ct. 35, 427 F.Supp. 417 (1977), the issue was whether the burning of slots and holes into Z-beams in Mexico, so that wear and support plates and other components could be attached prior to the beams' joinder to boxcars, constituted a further fabrication of the beams. The court held that the burning of the holes and slots was concomitant with the assembly process and was not substantial enough to preclude the application of the precursor provision to subheading 9802.00.80, HTSUSA. In addition , we have previously ruled on several occasions that drilling or punching holes in various components is an operation incidental to assembly where the operation is not substantial and is necessary for the assembly process. See, HRL 061429 dated March 28, 1980 (holes drilled and punched through plastic cabinet, wood decal, and oscillator shield to accommodate locks and coil were deemed to be incidental to assembly, as they were not substantial); and HRL 555394 dated August 15, 1989 (punching a hole into a vertical blind strip, which allows for the subsequent attachment of a plastic hook, is considered an incidental operation).

In the instant case, consistent with the cases cited above, we are of the opinion that the operation that entails punching holes into the footwear uppers to permit the subsequent insertion of metal rivets is an acceptable operation incidental to the assembly of the footwear uppers. As the court found in Rudolph Miles, punching holes in the footwear upper components does not constitute a further fabrication of the components. Moveover, the relative time required to perform the hole punching is insignificant as compared with the time required to perform the entire assembly operation. In addition, a comparison of the relative cost required to perform the operation with the cost of the U.S. fabricated components reveals that the cost of the hole punching operation represents approximately 3.1 percent of the cost of the U.S. fabricated components. It appears that the hole punching is so related to the assembly that it is logically performed during the assembly operation. Without the holes in the footwear uppers, the eyelets cannot be inserted into the uppers. Finally, we have been informed that economic and practical considerations dictate that the hole punching be performed during the assembly operation.

In sum, we are satisfied based on the information provided that the U.S. components satisfy the requirements of subheading 9802.00.80, HTSUSA, and therefore, are entitled to the duty allowance available under this tariff provision.

Country of Origin Marking Requirements

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product.

Section 10.22, Customs Regulations (19 CFR 10.22), constitutes an exception to the general rule that the country of origin of an article is the country where the last substantial transformation occurs. This provision, which specifies the country of origin marking requirements for articles entitled to a duty exemption under the subheading 9802.00.80, HTSUSA, provides as follows:

Assembled articles entitled to the exemption are considered products of the country of assembly for the purposes of the country of origin marking requirements of section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304). If an imported assembled article is made entirely of American-made materials, the United States origin of the material may be disclosed by using a legend such as "Assembled in from material of U.S. origin," or a similar phrase. (Emphasis added.)

Since the footwear upper in the instant case is not made entirely of U.S.-origin materials, but also includes Japanese- origin components, pursuant to 19 CFR 10.22, it is incorrect to use the phrases "Upper assembled in China of U.S. Components, balance assembled in U.S.A." and "Upper assembled in China of U.S. components, bottom made/attached in U.S.A." These statements are misleading to the consumer since they do not indicate that any of the components of the upper are made from non-U.S.-origin materials. However, it is acceptable under 19 U.S.C. 1304 to mark the uppers with the phrase "Upper made in China, sole made in U.S.A., assembled in U.S.A." However, use of the phrase "made in U.S.A." is within the jurisdiction of the Federal Trade Commission. Therefore, you should contact the FTC regarding the appropriateness of the use of this phrase. The FTC address is: Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508.

HOLDING:

The textile uppers with inserted shoelaces are not considered composite goods or sets within the purview of GRI 3(b), HTSUSA.

The textile uppers without bottoms are dutiable at the rate of 8.6% ad valorem under subheading 6406.10.9040, HTSUSA. The applicable textile category number is 669.

The shoelaces are separately classifiable, assuming they are of man-made fiber, under subheading 5609.00.3000, HTSUSA. The applicable rate of duty for this provision is 8.6% ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota category 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 issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

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 the importation of this merchandise to determine the current status of any import restraints or requirements.

Based on the information and samples submitted, it is our opinion that the foreign operations performed on the U.S.-origin footwear upper components are considered proper assembly operations and operations incidental to the assembly process. Therefore, the imported footwear uppers may be entered under subheading 9802.00.80, HTSUSA, with allowances in duty for the cost or value of the U.S.-origin components incorporated therein, upon compliance with the documentary requirements of 19 CFR 10.24. It is proper under 19 U.S.C. 1304 to mark the uppers with the phrase "Upper made in China, Sole Made in U.S.A." However, you should contact the FTC regarding the appropriateness of the phrase "Made in U.S.A."

Sincerely,

John Durant, Director
Commercial Rulings Division