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HQ 555116

October 16, 1989

CLA-2 CO:R:C:V 555116 GRV


TARIFF NO.: 9802.00.80

Leslie Alan Glick, Esq.
Porter, Wright, Morris & Arthur
1233 20th Street, N.W.
Washington, D.C. 20036-2395

RE: Applicability of partial duty exemption under HTSUS item 9802.00.80 to Fourdrinier, endless-forming fabrics

Dear Mr. Glick:

This is in response to your letters of September 2, 1988, and July 21, and September 13, 1989, on behalf of Asten Forming Fabrics, Inc., requesting a ruling on the applicability of sub- heading 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS) (formerly item 807.00, Tariff Schedules of the United States (TSUS)), to Fourdrinier, endless-forming fabrics to be imported from Mexico. Samples of the subject fiber and fabric, and photographs of the foreign operation, were submitted for examination.


You state that synthetic fabric sheets (polyester monofila- ment), woven in the U.S. on wide looms and in various meshes, will be exported to Mexico for a seaming operation which will render each sheet a continuous loop of fabric for use as part of a Fourdrinier paper-making machine.

The fabric to be exported is woven, heat-set, and cut to length in the U.S. The fabric is first woven from polyester monofilament yarn into sheets (on either Jaeger Weaving or Asten Forming Fabric looms) ranging in width from 2-33 feet and in length from 35-275 feet. The fabric sheet is then temporarily joined in a continuous loop using a "dummy seam" to hold the fabric together for a heat-setting process. During the heat- setting process, the fabric is stretched in the direction of the warp strands (those which run the length of the fabric), which transfers the weave pattern of the particular mesh to the weft strands (those which run across the width of the fabric). This improves the physical properties of the fabric by significantly reducing the stretch of the material in the warp strands--an essential quality of fabric designed for use in paper-making. Following the heat-setting process, the "dummy seam" is removed and the fabric is cut to the length specified by the purchaser. A narrow strip of fabric (usually 6 inches in width) is cut from the heat-set piece at one end so that the heat-set weft strands from this strip can be re-inserted abroad in a seaming operation. Approximately 6 inches of each end of the fabric sheet are then "fringed," which is a process whereby the weft strands are manually removed to prepare the fabric for the foreign processing operation.

The fabric sheet is packaged by rolling it onto poles and wrapping the poles with paper. The poles are then bound together with tape to keeps the fabric from unraveling. The strip of fabric is packaged separately and marked to indicate from which fabric sheet it was cut to ensure an identity of weave pattern in the finished product. In these conditions, the fabric sheet and strip components are exported to Mexico.

In Mexico, the warp strands in the frayed ends of the fabric sheet are joined to the weft strands of the narrow strip of fabric on a seaming machine by an operator who manually inter- laces the fabric strands to form a continuous loop of fabric. This seaming operation is comprised of two steps--"plucking" and seaming--which are performed at the same time by an operator on a modified Jacquard Head machine. (The machine is programmable to the particular weave pattern of the fabric and serves to set and hold the position of the various fabric strands). The ends of the fabric sheet and the fabric strip are positioned in the seaming machine so that the strip is located between the ends, and the machine is then set. The warp strands of the fabric strip are hand "plucked" (pulled and discarded) by the operator, which leaves the weft strands in place. The operator simultane- ously interlaces the warp strands in the frayed ends of the fabric sheet with the weft strands from the fabric strip. During this operation, the various warp strands are machine trimmed at variable lengths to disperse the termination points of the strands within the seam, thus insuring the smoothest possible seam. The endless-forming fabric is then imported into the U.S.

You assert that this seaming operation is closely analogous to the joining of fabric by sewing, except that it does not create a visible seam. You maintain that the seaming operation is distinctly different and separate from the original U.S. weaving operation, as the strands in the seaming operation are not kept taut, as is generally the case in a weaving operation. Also, the product to be imported will be approximately 6 inches shorter than the component fabric sheet exported because the frayed ends are overlaid and variably trimmed. Further, you state that the machine used in the seaming operation is incapable of being used for weaving, as it is specifically designed to be used for this seaming operation and has no other use.

Concerning the "plucking" operation, you maintain that this is a minor operation which cannot be performed prior to the assembly operation, as the length strands are needed to hold the width strands in place up to the moment of assembly. Further, you state that the labor cost and time involved in performing this aspect of the operation represents only 4.2% of the labor cost and time required for the seaming operation as a whole.


I. Whether the synthetic fabric sheets are exported in condi- tion ready for assembly without further fabrication, as required by clause (a) of HTSUS subheading 9802.00.80.

II. Whether the "plucking" step constitutes an operation inci- dental to the assembly process, as required by clause (c) of HTSUS subheading 9802.00.80.


The HTSUS superseded and replaced the TSUS on January 1, 1989. TSUS item 807.00 was carried over into the HTSUS without change as subheading 9802.00.80. This tariff provision provides a partial duty exemption for:

[a]rticles assembled abroad in whole or in part of fab- ricated 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 HTSUS subheading 9802.00.80 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 19 CFR 10.24.

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. 19 CFR 10.16(a).

Sewing and weaving are defined in Webster's Third Interna- tional Dictionary (1971) as follows:
sewing - the action or method of one by hand or machine to sew, which unites, attaches, or fastens by stitches made with a flexible thread or filament. weaving - a process of forming cloth usually on a loom by the interlacing of threads, yarns, or other strands.

Weaving is also defined as the production of fabric by inter- lacing two sets of yarns so that they cross each other, normally at right angles, usually accomplished with a hand- or power- operated loom. The New Encyclopaedia Britannica (1975). While sewing has always been considered an acceptable means of assembly for purposes of HTSUS subheading 9802.00.80, we have consistently held that the weaving of fabrics from spun yarn constitutes a manufacturing process rather than an assembly operation. See, Headquarters Ruling Letter 553593 (May 16, 1985).

I. The requirement that the U.S. component be ready for assembly as exported

The correct starting point for the application of HTSUS subheading 9802.00.80 is the components as "exported," in the condition in which they leave the U.S. See, E. Dillingham, Inc., v. United States, 67 Cust.Ct. 226, C.D. 4278 (1971), modified, 60 CCPA 39, C.A.D. 1078, 470 F.2d 629 (1972). There- fore, the first hurdle to clear in qualifying an article for HTSUS subheading 9802.00.80 treatment is to determine whether the U.S. components exported are finished components. In this regard, 19 CFR 10.14(a), provides, 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. (Emphasis supplied).

As there is no one, all-embracing definition of what steps or processes constitute "further fabrication" within the meaning of this statutory provision, whether a particular foreign pro- cess constitutes a "further fabrication" depends upon the facts of the particular case. See, Zwicker Knitting Mills v. United States, 82 Cust.Ct.34, C.D. 4786, 469 F.Supp. 727 (1969), aff'd, 67 CCPA 37, C.A.D. 1240, 613 F.2d 295 (1980). For textile cases in general, the courts have observed that sewing and knitting operations constitute a further fabrication only if they create the basic article, and, in making this determination, the courts look not only at the condition of the exported component, but at the nature of the foreign operation involved. See, E. Dilling- ham, supra, and, L'Eggs Products, Inc., v. United States, Slip Op. 89-5, 13 CIT ____, 704 F.Supp. 1127 (1989).

The Dillingham case involved the applicability of TSUS item 807.00 to imported papermakers' felts composed of U.S. wool fiber needled into U.S. fabric. Although the court determined that the fabric component was exported in condition ready for assembly without further fabrication, it found that the massed fibers did not meet this statutory requirement. The court examined the nature of the foreign operation and found that the opening, oiling, and carding operations performed on the fiber before it met up with the fabric component constituted "further fabrica- tion" of the fiber within the meaning of clause (a) of TSUS item 807.00, for without the performance of these operations, the en masse fiber component was not ready for assembly. (Regarding the base fabric, the court stated that it had been woven on a loom in the U.S. to meet the customer's needs, varying in its construc- tion according to the kind of paper to be produced, the size of the paper machine, chemicals to be used and paper finish desired. Speaking about papermakers' felts in general, the court stated that each felt is custom made with the characteristics of length, width, porosity, absorbency and weave pattern all varying according to the requirements of the customer).

In the Zwicker case, glove shells were partially knitted in the U.S. on machines which could not close the fingertips. The open-fingered glove shells, pre-cut palms, and a separate piece of yarn were sent abroad where the knitting process was completed and the glove fingers were closed or "tipped." Because the "tipping" operation involved an addition of material, which actually constructed a portion of the glove that did not exist before, and was necessary to complete the component, the court held that the exported knitted glove shells were only partially fabricated in the U.S., and that the foreign "tipping" operation constituted a "further fabrication" of the gloves.

In the instant case, we are persuaded that the components are finished components when exported and, therefore, meet the requirements of clause (a) of HTSUS subheading 9802.00.80. We believe that once the fabric is woven, heat-set and cut to length, it becomes a completed component, since the polyester monofilaments comprising the basic fabric sheet are irreversibly formed into a given mesh pattern, and the particular fabric sheet and strip possess custom-made characteristics to meet customer requirements. Further, unlike the fiber component in Dilling- ham, no operation is performed on the exported fabric components to complete them in preparation for the assembly operation, and unlike the glove shells in Zwicker, there is no continuation abroad of the original U.S. manufacturing process (a different machine is used that is incapable of weaving fabric, accord, L'Eggs, supra, at pg. 1129). Moreover, the foreign operation does not involve the addition of material (rather the "plucking" step entails the removal of material), and no new portion of the exported fabric sheet is constructed. Lastly, the photographs submitted show that the seaming machine is not in the nature of a fabricating loom. Accordingly, we find that the fabric compo- nents are finished components as exported and meet the require- ments of clause (a) of HTSUS subheading 9802.00.80.

Finding the U.S. components to be in a finished condition as exported, we further find that the seaming operation in this case is well within the common meaning of the term "assembly" and clearly distinguishable from a weaving operation. Although some- what similar to a weaving operation in that yarns are interlaced, the seaming operation is considerably less than weaving, as cloth is not formed on a loom, but rather the frayed ends of already formed fabric sheets are merely attached to each other on a seam- ing machine incapable of fabricating a woven fabric. In this regard, the operation is analogous to the splicing together of ropes, which joins two completed lengths together. Accordingly, the seaming operation is deemed to constitute an acceptable method of joining the components together, within the meaning of 19 CFR 10.16(a).

II. The requirement that the U.S. components be advanced or improved abroad only by the assembly process or operations incidental thereto

Operations incidental to the assembly process are not con- sidered further fabrication operations, as they are of a minor nature and cannot always be provided for in advance of the assem- bly operation, although they may precede, accompany or follow the actual assembly operation. 19 CFR 10.16(a). Examples of opera- tions considered incidental to the assembly process are deline- ated at 19 CFR 10.16(b). 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 HTSUS subheading 9802.00.80. See, 19 CFR 10.16(c).

In United States v. Mast Industries, Inc., 515 F.Supp. 43, 1 CIT 188 (1981), aff'd, 69 CCPA 47, 668 F.2d (1981), the court, in considering 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 of the operation and time required by the operator were 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.

Applying these considerations to the "plucking" aspect of the seaming operation in this case, we find that it conforms to the Mast criteria, and, therefore, constitutes an acceptable operation "incidental to the assembly process" within the meaning of that phrase. First, the relative cost/time required to pluck the warp strands from the fabric strip is minor; constituting less than 5% of the total cost/time involved in the entire assem- bly operation. Second, the removal of the warp strands from the fabric strip is necessary to the assembly process, for without their removal the weft strands from the fabric strip could not be reinserted into the frayed ends of the fabric sheet. Further, plucking is related to the assembly, as an identity of pattern weave must be maintained, and is logically performed abroad concurrently with the assembly because the warp strands of the fabric strip serve to keep the weft strands properly spaced until the moment of assembly. Accordingly, we find that, on balancing the relevant factors, the "plucking" step in this case constitutes an incidental operation.


From the information and sample/photographs presented, we conclude that the U.S. components--the fabric sheet and strip-- will be exported in a finished condition ready for assembly without further fabrication, will not lose their physical identi- ty by assembly, and will not be advanced in value or improved in condition abroad except by assembly and operations incidental thereto. As the seaming operation constitutes an acceptable assembly operation, the Fourdrinier, endless-forming fabric articles to be imported will be eligible for the partial duty exemption under HTSUS subheading 9802.00.80 when imported into the U.S., upon compliance with the documentary requirements set forth in 19 CFR 10.24.


John Durant, Director
Commercial Rulings Division

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