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HQ 087526


April 24, 1992

CLA-2 CO:R:C:T 087526 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6113.00.0070; 6210.50.1040; 6211.43.0007

Mr. Mark Neville, Esq.
51 Marion Road
Westport, CN 06880

RE: Survival and foul weather garments. Gore-Tex; Antonio Pompeo; protection ; decency; adornment; other made up articles

Dear Mr. Neville:

This is in reply to your letter of June 12, 1990. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of survival and foul weather garments, produced in Canada.

FACTS:

The merchandise at issue consists of five separate articles, described by you as follows:

Model No.

Description
MAC-10
Aviation Anti-Exposure CoverallMAC-5
Aviation Anti-Exposure CoverallsIS-2
Immersion/Survival SuitMP4300
Bib Pants (mens)MP4700
Bib Pants (mens)
As you can see from the above, there are three separate types of articles. The aviation anti-exposure coveralls, MAC-10 and MAC-5, are described in the brochure styled "MAC Mustang Aviation Coveralls," [:as

[a] one-piece coverall having an outer layer of [woven Nomex permeable fabric, a middle layer of impermeable [PVC] foam and an inner layer of permeable fabric. No attached feet, gloves or hood. No permanent seal at wrists or ankles or neck.

The Immersion/Survival Suit, IS-2, is a survival suit system designed to be worn against the specific hazards of immersion in the water and risks of hypothermia and drowning. The unit is constructed from neoprene rubber sheets to which knit nylon fabric has been laminated on both sides. The sheets are cut, shaped and assembled together with heavy duty waterproof/gasproof zippers, snaps, velcro attachments, hooks, rings, webbing and an inflation valve.

The suit is depicted at p. 12 of the Mustang catalog, in which a description of the anti-hypothermic protection of Mustang is contained at p. 3.

You will also note that the IS-2 meets U.S. Coast Guard approval: 160.071/16/0.

The men's bib pants, MP-4300 and MP-4700, are foul weather pants which provide excellent wind and rain protection but are not insulated and are not buoyant. They are depicted at pp. 6 and 11 of the catalog.

The MP-4300, is constructed with a red nylon labrador twill fabric, which is tapeable and has been coated on the back with polyurethane, and the outer shell of which has been treated with a water repellant spray. The inner lining is uncoated black nylon. The MP-4700 bib overalls are constructed from an outer shell of dermo flex nylon tapeable, which has been sprayed for water resistance[,] and an inner lining of uncoated black nylon.

In HRL 078486 of January 21, 1987, the aviation coveralls were classified under item number 389.6270, Tariff Schedules of the United States (TSUS), as other articles of man-made fiber. In Internal Advice 074939 of June 20, 1985, the immersion suit was classified under item number 386.13, TSUS, as articles of textile materials, not specifically provided for.

ISSUE:

Whether the articles are considered wearing apparel under the HTSUSA?

LAW AND ANALYSIS:

MAC-5 & MAC-10 Coveralls

Heading 6211, HTSUSA, provides for, inter alia, other garments, including coveralls. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to heading 6114, HTSUSA, which applies, mutatis mutandis, to articles of this heading, states:

This heading covers ... garments which are not included more specifically in the preceding headings of this chapter.

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.

(4) Specialized clothing for airmen, etc. (e.g., airmen's electrically heated clothing). [Emphasis added.]

You contend that classification of the MACs under this provision would be incorrect, based upon "the fact that these garments are not wearing apparel since they are not meant to provide decency, comfort or adornment...." See Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D. 2006 (Jun. 17, 1958) ( TSUS) (the term wearing apparel includes articles worn for decency, comfort or adornment, but not for protection against sports or work place hazards). See also HRL 078486, supra, (TSUS) (relying upon Antonio Pompeo).

Resulting from the enactment of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 (1988), the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) became our tariff code, effective January 1, 1989. Customs is mandated by law to classify merchandise according to the terms of this schedule, aided by various explanatory materials. It is clear from the above-cited Explanatory Notes that it was the intention of the drafters of the Harmonized System to incorporate within the " other garments" provision a broader range of articles. The above-emphasized items are all protective apparel considered garments. We feel, therefore, that classification of the MACs under heading 6211, HTSUSA, is correct.

IS-2 Suit

Heading 6113, HTSUSA, provides for, inter alia, garments made up of fabrics of heading 5906 (rubberized textile fabrics). The EN to heading 5906 states:

This heading covers:

(D) Plates, sheets or strip of cellular rubber combined with textile fabric, in which the textile fabric is more than mere reinforcement. (As regards the criteria for distinguishing between these products and similar products of heading 40.08, see item (A) of Explanatory Note to heading 40.08.)

The EN to heading 4008, HTSUSA, states that "...cellular rubber combined with textile fabric on both faces, whatever the nature of the fabric, are excluded from this heading (heading 56.02, 56.03 or 59.06)." Since the rubber sheets are combined on both sides with textile, it is clear that the IS-2 is made up of fabrics of heading 5906, HTSUSA.

You have again argued, at six, "that these survival articles are not wearing apparel but are, instead, other made-up textile articles[ of heading 6307, HTSUSA]." In response, we repeat our analysis from the preceding segment, noting with approval the EN to heading 6113:

... this heading covers all garments made up of ... fabrics of heading 59.03, 59.06 or 59.07, without distinction between male or female wear.

The heading includes raincoats, oilskins, divers' suits and anti-radiation protective suits, not combined with breathing apparatus.

Classification of the IS-2 in heading 6113, HTSUSA, is therefore appropriate.

MP-4300 and MP-4700

Heading 6210, HTSUSA, provides for, inter alia, garments made up of fabrics of heading 5903. Heading 5903, HTSUSA, provides for classification of textile fabrics impregnated, coated, covered or laminated with plastics, other than tire cord covered by Heading 5902. Note 2 of Chapter 59, HTSUSA, provides, in pertinent part:

Heading No. 59.03 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, ... other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; * * *

The wording of Note 2(a)(1) (cannot be seen with the naked eye) is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered impregnated, coated, covered or laminated. The plastics material added to the fabric must be visibly indistinguishable from that fabric without the use of magnification. Any change in the feel of the material is not taken into account. In essence, the plastics coating must alter the visual characteristic of the fabric in order for the fabric to be considered coated with plastics.

Applying the statutory test to the submitted samples, using normally corrected vision in a well lighted room, the fabric composing the outer shell of the bib pants is clearly visibly coated. The warp and weft design is almost completely obscured by the PU coating; therefore, the bib pants are classifiable in heading 6210, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classifiable as follows:

MAC-10 and MAC-5

... under subheading 6211.43.0007, HTSUSA, textile category 659, as track suits, ski-suits and swimwear; other garments, other garments, women's or girls', of man-made fibers, coveralls, jumpsuits and similar apparel, other, insulated for cold weather protection. Articles which meet the definition of goods originating in the territory of Canada (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes goods originating in the territory of Canada, the applicable rate of duty is 10.2 percent ad valorem; otherwise, the general rate of duty is 17 percent ad valorem.

IS-2

... under subheading 6113.00.0070, HTSUSA, textile category 659, as garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907, other, overalls and coveralls, other, women's or girls'. Articles which meet the definition of goods originating in the territory of Canada (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes goods originating in the territory of Canada, the applicable rate of duty is 4. 5 percent ad valorem; otherwise, the general rate of duty is 7.6 percent ad valorem.

MP-4300 and MP-4700

... under subheading 6210.50.1040, HTSUSA, textile category 659, as garments, made up of fabrics of heading 5602, 5603, 5906 or 5907, other women's or girls' garments, of man-made fibers, other, overalls and coveralls. Articles which meet the definition of goods originating in the territory of Canada (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes goods originating in the territory of Canada, the applicable rate of duty is 4.5 percent ad valorem; otherwise, the general rate of duty is 7.6 percent ad valorem.

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 negotiations 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 issuance of the U.S. Customs Service, which is updated weekly and is available 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 status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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