HQ 0088373 - Modification of New York Ruling Letter (NYRL) 848018; classification of warning vest - United States International Trade Commision Rulings

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HQ 088373

April 12, 1991

CLA-2 CO:R:C:T 088373jlj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9490

Mr. Jay Shynn
Kotap America Ltd.
10 Bayview Avenue
Lawrence, New York 11559

RE: Modification of New York Ruling Letter (NYRL) 848018; classification of warning vest

Dear Mr. Shynn:

On December 21, 1989, U. S. Customs, New York Seaport, issued a ruling to you (NYRL 848018) classifying a warning vest under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reconsidered this ruling at the request of our New York office and have determined that the classification stated therein was in error.

FACTS:

The item at issue is a warning vest produced in South Korea and used by construction workers. It is made of mesh, PVC dipped, polyester base fabric, and is fluorescent orange in color and is flame retardant. The reflector on the chest and back is PVC. The binding around the neck, arm holes and bordering the entire vest is vinyl. At the side bottom of the vest on each side is an elastic adjustable band. The closure at the back of the vest is made of a velcro-like material.

In NYRL 848018, the warning vest was classified under the provision for garments, made up of fabrics of Heading 5602, 5603, 5906 or 5907: other women's or girls' garments: of man-made fibers: having an outer surface impregnated, coated, covered or laminated with rubber or plastics material which completely obscures the underlying fabric, in subheading 6210.50.1010, HTSUSA.

ISSUE:

What is the correct tariff classification of this item?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relevant section or chapter notes.

The instant fluorescent orange vest is not designed to be worn as apparel, but as a warning signal worn over clothing by construction workers to catch the attention of motorists who are approaching construction areas.

In Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D.2006 (1958), the Customs Court held that the common meaning of the term "wearing apparel" includes articles worn by human beings for reasons of decency, comfort or adornment, but does not include articles worn as a protection against the hazards of a game, sport or competition , or for the prevention of injury.

In Admiral Craft Equipment Corp. v. United States, 82 Cust. Ct. 162, C.D. 4796 (1979), the merchandise was disposable aprons and bibs intended to protect the wearer's clothing. The court added 'protection' to the list of functions of wearing apparel.

The instant warning vest is intended for none of the purposes enumerated in C.D. 2006 and C.D. 4796, therefore it is not classified as wearing apparel. The warning vest is merely a piece of material which is worn over clothing.

The Explanatory Notes to Heading 6307 state that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. The instant warning vest is not included more specifically in the tariff, therefore it is classified in Heading 6307. Similar merchandise has previously been classified in Heading 6307 as other made up articles. See Headquarters Ruling Letter 084341 of July 31, 1989, in which an identifying police vest was classified in subheading 6307.90.9030, HTSUSA.

HOLDING:

The warning vest is classified under the provision for other made up articles, including dress pattterns: other: other: other: other, in subheading 6307.90.9490, HTSUSA, dutiable at the rate of 7 percent ad valorem.
In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying NYRL 848018 to reflect the above classification effective with the date of this letter. However, if after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of the date of this letter.

This notice to you should be considered a modification of NYRL 848018 under 10 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 848018 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions of merchandise of this type, NYRL 848018 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and apply for such relief from the binding effects as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director
Commercial Rulings Division

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