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NY C80753




November 14, 1997

CLA-2-62:RR:NC:WA:353 C80753

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.10.5000; 6210.10.9010

Ms. Mary E. Keller
A.W. Fenton Company, Inc.
1452 Donaldson Road
P.O. Box 75029
Cincinnati, Ohio 45275-0029

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of protective wear from Mexico; Article 509

Dear Ms. Keller:

In your letter dated October 14, 1997, received in our office on October 15, 1997, you requested a ruling on the status of disposable protective wearing apparel from Mexico under the NAFTA on behalf of your client, West Chester Marketing, Inc. Four samples were submitted for examination with your request.

West Chester Marketing advises that the raw materials, including the fabric, thread, zippers, elastic, snaps, etc. and cardboard packing cases for all these items, are made in the United States. These are exported to the manufacturer in Mexico who will cut and sew these items into finished goods, pack them in the cases provided, and ship them back to Cincinnati, Ohio for Customs clearance.

The submitted samples are described as follows:-

Style No. 3700 - POSI-WEAR - one piece coverall with a zipper front and collar. The long sleeves and pant cuffs are not elasticized. From the submitted catalog this article is advertised as made from spunbonded polypropylene laminated to an outer shell of impervious polyethylene film, designed for use in industrial applications where basic chemical hazard protection is required, including splash protection. Air permeability of the material is stated to be zero.

Style No. 3752 - one piece coverall with a zipper front and collar. The long sleeves and pants cuffs are elasticized. From the submitted catalog this article is advertised as made of polyethylene coated spunbonded polyproplyene designed to be protect workers against chemicals dusts, paint sprays, asbestos and other solid airborne dusts often encountered in industry.

Style No. 3500 - one piece coverall with a zipper front and collar. The long sleeves and pants cuffs are not elasticized. From the submitted catalog it is advertised as made from spun bond polypropylene with no particular applications described for its use. It appears designed for general purpose protective use.

Style No. 3800 - POSI-WEAR2 - one piece coverall with zipper front and collar. The long sleeves and pant cuffs are open and not elasticized. It is stated to be made from SMS polypropylene. No particular applications were indicated for its use and appears it appears designed for general purpose protective use.

In HQ Ruling Letter (HRL) 957117 dated August 1, 1995 it was stated that Customs will classify a garment as "designed for use in hospitals, clinics, laboratories or contaminated areas" if it has an established commercial acceptability for such uses. A determination of whether a garment provides sufficient protection from exposure to contaminants is not within the purview of the Customs Service, and it is the marketplace or regulatory agencies which will determine whether a garment offers adequate protection for its intended purpose. Customs has previously determined whether a garment will qualify for classification as a protective garment of subheading 6210.10.5000, HTSUS, on the basis of the garment's physical design and properties, as well as how it is marketed, advertised or sold.

Some of the garments submitted to this office possess design features indicative of protective wear such as elasticized wrist and cuff closures. From HRL 957117 we note that is Customs' opinion that garments such as these will adequately serve as protective apparel in some situations, but not in all and that the term "designed for use" in hospitals, clinics, laboratories or contaminated areas" covers a multitude of environmental situations and no specific set of requirements or standards can be adopted as the only criteria to be used in determining whether a garment offers adequate protection for purposes of classification within subheading 6210.10.5000, HTSUS.

The determinative issue is whether these garments provide protection, and this is established by evidence of commercial acceptance as protective garments and without such evidence, whether the garments at issue possess design features indicative of protective wear such as attached boots, elasticized wrist and cuff closures, and attached hood with elasticized edges.

The applicable tariff provision for Styles No. 3700 and No. 3752 will be 6210.10.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which
provides for "Garments, made up from fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603: Other: Nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas:. The general rate of duty will be 4.4 percent ad valorem.

The applicable tariff provision for Styles No. 3500 and No. 3800 will be 6210.10.9010, HTSUSA, which provides for "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603: Other: Other: Other: Overalls and coveralls". The general rate will be 16.7 percent ad valorem. The textile category designation is 659.

Each of the non-originating materials used to make the submitted four protective wear garments has satisfied the changes in tariff classification required under HTSUSA General Note 12(t)/62. Styles No. 3700 and No. 3752 will be entitled to a 2.1 percent rate of duty and styles No.3500 and No. 3800 be entitled to a 5.6 percent rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

The provisions governing the dutiable status of U.S. products which are exported to a foreign country for processing and then returned to the United States are set forth in Chapter 98 of the Harmonized Tariff Schedule of the United States Annotated (HTSUS). U.S. Note 2(a), subchapter II, Chapter 98, HTSUSA, provides that, except as otherwise prescribed in this subchapter, products of the U.S. which are returned after having been advanced in value or improved in condition abroad by any process of manufacture or other means, shall be treated for the purposes of this Act as a foreign article, and, if subject to a duty which is wholly or partly ad valorem, shall be dutiable, except as otherwise prescribed in this part, on its full value determined in accordance with section 402 of the Tariff Act of 1930, as amended. The U.S. materials for the subject articles, being so advanced in value or improved in condition in Mexico, are therefore treated as foreign and upon importation into the United States are dutiable at their full value.

Subheading 9802.00.80, HTSUS , which provides for 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 does not apply to the subject articles.

Packing

You state that U.S. cardboard packing cases will also be sent to Mexico and serve as packaging for the imported garments. With respect to these containers, GRI 5(b) provides that, "[p]acking materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for the packing of such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use." Therefore, the value of a non-reusable container normally used for packing is dutiable at the rate of its contents. However, upon submission of satisfactory proof that a container is of U.S. origin and that it is returned without having been advanced in value or improved in condition abroad, it is entitled to duty-free treatment under subheading 9801.00.10, HTSUSA, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Martin Weiss at 212-466-5881.

Sincerely,

Robert B. Swierupski
Director,

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