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NY R02990




December 22, 2005

CLA-2-98:RR:NC:3:353 R02990

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.85.01

Mr. Lance Miller
National Law Enforcement and
Corrections Technology Center (NLECTC)
2277 Research Blvd.
Rockville, MD 20850

RE: Treatment of sample body armor, ballistic vests and bullet resistant/proof vests from various countries as prototypes.

Dear Mr. Miller:

In your letter dated December 15, 2005, you requested a determination of the eligibility of body armor, ballistic vests and bullet resistant/proof vests as prototypes of subheading 9817.85.01.

The instant merchandise is body armor, ballistic vests and bullet resistant/proof vests constructed of multiple layers of man-made fiber fabric such as Kevlar®, Twaron®, SpectraShield®, having an outer layer of synthetic or natural material that is fitted into a “carrier” of polyester, cotton or nylon fabric (or combinations thereof). The carrier is usually a sleeveless garment that can be adjusted at the shoulder and waist for comfortable fit and is worn underneath clothing. Some tactical operation garments are worn externally, incorporate hard plates of ceramic, steel or composite materials and protect against high-velocity rifle fire.

The garments are first samples submitted to NLECTC and tested at independent laboratories, where they are tested by shooting at specific target points to ensure they meet defined ballistic-resistant performance standards for body armor. The samples are tested to destruction and returned to the NLECTC for review. The NLECTC either retains the tested garments or returns them to the originating manufacturer.

Subheading 9817.85.01 in Subchapter XVII of Chapter 98, HTSUS, provides for “Prototypes to be used exclusively for development, testing, product evaluation, or quality control purposes.”

Note 7 in Subchapter XVII of Chapter 98 defines prototypes for the purposes of HTSUS subheading 9817.85.01 and sets forth certain conditions and limitations governing classification in the subheading. This Note provides:

For purposes of this subchapter, including heading 9817.85.01, the term “prototypes” means originals or models of articles that –
are either in the pre-production, production, or postproduction stage and are to be used exclusively for development, testing, product evaluation, or quality control purposes; and in the case of originals or models of articles that are either in the production or postproduction stage, are associated with a design change from current production (including a refinement, advancement, improvement, development, or quality control in either the product itself or the means for producing the product).

(b) (i) Prototypes may be imported only in limited noncommercial quantities in accordance with industry practice.

(ii) Except as provided for by the Secretary of the Treasury, Prototypes or parts of prototypes may not be sold after importation into the United States or be incorporated into other products that are sold.

(c) Articles subject to quantitative restrictions, antidumping orders, or countervailing duty orders may not be classified as prototypes under this note. Articles subject to licensing requirements, or which must comply with laws, rules, or regulations administered by agencies other than the United Sates Customs Service before being imported, may be classified as prototypes if they comply with all applicable provisions of law and otherwise meet the definition of “prototypes” under paragraph (a).

You state that the body armor, ballistic vests and bullet resistant/proof vests are single samples of particular garment designs and the entire quantity will be used for prototype purposes. In addition the quantities are the normal “noncommercial quantity in accordance with industry practice.” The garments are articles in pre-production or production stages and will be used exclusively for product development, testing, product evaluation, or quality control purposes. The garments satisfy the conditions set forth for classification in subheading 9817.85.01.

Please note that the garments cannot be commercially sold without governmental approval in accordance with subparagraph (b)(ii) of Note 7. In addition, eligibility for prototype treatment also requires that the garments not be subject to any of the restrictions in subparagraph (c) of Note 7, i.e. quantitative restrictions, antidumping or countervailing duty orders.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

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 Kenneth Reidlinger at 646-733-3053.

Sincerely,

Robert B. Swierupski
Director,

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