CLA-2 RR:CR:TE 961737 RH
Stephen M. Zellman, Esq.
Stephen M. Zellman & Associates
888 Seventh Avenue
New York, New York 10106
RE: Classification and country of origin of a welder’s apron and sleeve protectors;
heading 6211; protective garment; heading 6217; accessory
Dear Mr. Zellman:
This is in reply to your letter of April 9, 1998, on behalf of Sportsmed International, Inc., requesting a ruling on the classification of “protective textile aprons and sleeves” and confirmation that their country of origin is Israel.
The protective textile apron is made of green, heavy duty, woven cotton fabric which has been treated with a chemical flame retardant known as “Proban.” It is approximately 36 inches long and 28 inches wide and tapers at the top bib portion to 12 inches wide. The apron has a textile neck strap and textile straps at each side which enable it to be tied at the waist. The straps are attached to the apron with snaps.
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The apron’s fabric is produced in a third country and shipped to Israel, where it is cut to shape, hemmed and the snaps attached. An additional piece of the fabric may be cut to form a pocket and sewn onto the apron.
The sleeves are made from the same fabric as the apron. They are approximately 18 inches long and tubular in shape with a widening at the center to accommodate movement of the arm. The sleeves have ½ inch wide elastic around the interior of the openings to securely hold them in place. We note that the samples we received differ in that the elastic is approximately 2 inches wide. Both the apron and the sleeves are marketed for and used by welders to protect them from flame.
The treated fabric for the sleeves will be shipped to Israel, cut to shape, folded lengthwise and stitched closed. The elastic strips will be cut to length and sewn at each end.
The record does not contain information as to the origin of the snaps and elastic. Nor does the record indicate the manner in which the apron and sleeves are sold at retail, i.e., as separate items or as a set. Therefore, we will assume the items are separately packaged and sold.
You assert that the apron is classifiable under subheading 6211.32.0081 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as protective clothing, and that the sleeves are classifiable in heading 6307, HTSUSA, as other made up textile articles.
What are the classification and country of origin of the welder’s apron and sleeves?
LAW AND ANALYSIS:
The classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI’s), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may be applied, taken in order. Heading 6211, HTSUSA, provides for track suits, skisuits and swimwear, and other garments. Heading 6307, HTSUSA, is a residual provision which provides for other made up [textile] articles.
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The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN to heading 6211 state that the EN to heading 6114, concerning other garments, apply mutatis mutandis, to the articles of heading 6211, HTSUSA. The applicable EN to heading 6114, HTSUSA, states the following:
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The heading includes, inter alia:
(1) Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc.
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We agree with you that the welder’s apron is classifiable under heading 6211. However, we disagree with you that, at the subheading level, the apron is classifiable under 6211.32.0081, HTSUSA. Note 8, Chapter 62, HTSUSA, pertains to the classification of garments by gender. It states, in pertinent part that:
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Garments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments.
In this case, the apron has no features which distinguish it as a men’s or women’s garment. Therefore, it will be classified in subheading 6211.42.0081, HTSUSA, covering women’s or girls’ garments. The duty rate and textile category will be the same as it is under the classification you propose.
Next, you assert that the sleeve protectors are classifiable under heading 6307, as other made up textile articles, and are not wearing apparel accessories, under heading 6217, HTSUSA. The EN to heading 6217 list “sleeve protectors” among the merchandise classifiable under the provision for “other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 62.12.” Furthermore, in HQ 959672, dated September 20, 1996, which you cite in your letter, Customs classified elasticized sleeves worn to protect clothing from the wrist to the elbow under heading 6217, HTSUSA, as an accessory.
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In HQ 080498, dated December 28, 1989, Customs held that other made up clothing accessories can cover a wide variety of articles, including those which may be functional as opposed to purely decorative. Furthermore, in HQ 089581, dated November 4, 1991, we determined that an accessory is generally an article not necessary to the functioning of the primary good; an adjunct; something subordinate or supplemental. Moreover, an accessory must relate to or exhibit some nexus with the primary article. Id. You argue that the sleeve protectors “are the primary article” and do not relate to or “accessorize” another article. In your opinion, the welder’s sleeve protectors are distinguishable from the sleeves in HQ 959672, because the primary function of the sleeves in question is to protect a welder’s arms from flame and that the function of the “sleeve protectors” in heading 6217 is to protect sleeves. You point out that a welder may wear a short-sleeve shirt.
We are not persuaded by that distinction. The welder’s apron and sleeve protectors have been treated with the same chemical flame retardant. Both articles are marketed for and used by welders to protect their clothes and bodies from flames during welding. Accordingly, a nexus exists between the apron and the sleeve protectors, and we find that the sleeve protectors are classifiable under heading 6217, as an accessory to the apron.
Finally, you ask us to confirm that the welder’s apron and sleeve protectors are of Israeli origin. On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. §3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.
Section 334(b)(5) provides that:
This section shall not affect, for purposes of the customs laws and administration of quantitative restrictions, the status of goods that, under rulings and administrative practices in effect immediately before the enactment of this Act, would have originated in, or been the growth, product, or manufacture of, a country that is a party to an agreement with the United States establishing a free trade area, which entered into force before January 1, 1987. For such purposes, such rulings and administrative practices that were applied, immediately before the enactment of this Act, to determine the origin of textile and apparel products covered by such agreement shall continue to apply after the enactment of this Act, and on and after the effective date described in subsection (c), unless such rulings and practices are modified by the mutual consent of the parties to the agreement.
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Israel is the only country which qualifies under the terms of Section 334(b)(5). As the Section 334 rules of origin for textiles and apparel products do not apply to Israel, we refer to the
19 CFR §12.130 rules of origin, the rules of origin applicable to textiles and textile products before the enactment of Section 334. Section 334(b)(5) makes clear that if origin was conferred in Israel under Section 12.130 prior to the enactment of the Uruguay Round Agreements Act, Israel will continue to be accorded the same treatment. This interpretation of Section 334(b)(5) was confirmed in a Notice of a general statement of policy, Treasury Decision 9658, appearing in the Federal Register, Vol. 61, No. 148, dated July 31, 1996.
Section 12.130(e)(1) describes manufacturing or processing operations from which an article will usually be considered a product of the country in which those operations occurred. Section 12.130(e)(1)(iv) specifically provides that the cutting of fabric into parts and the assembly of
those parts into the completed article will be a manufacturing operation that will usually result in an article being considered a product of the country in which those operations occurred. In this case since the fabric is both cut and sewn in Israel, we agree with you that it is the country of origin.
The country of origin of the welder’s apron and sleeve protectors is Israel.
The welder’s apron is classifiable under subheading 6211.42.0081, HTSUSA, which provides for “Track suits, ski-suits and swimwear; Other garments: Other garments, women’s or girls’: Of cotton: Other.” It is dutiable at the general column one rate at 8.4 percent ad valorem and the textile category is 359.
The sleeve protectors are classifiable under subheading 6217.10.9510, HTSUSA, which encompasses “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other: Of cotton.” They are dutiable at the general column one rate at 15.1 percent ad valorem and the textile category is 359.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota 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 that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection 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 importing the merchandise to determine the current applicability of any import restraints or requirements.
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The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR §177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.
Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR §177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR §177.2.
John Durant, Director
Commercial Rulings Division