HQ 0953901 - Request for Internal Advice No. 25/93; TYVEK jackets; TYVEK is a fabric classifiable in heading 5603; fabrics of 5603, HTSUSA, are classifiable in heading 6210, HTSUSA - United States International Trade Commision Rulings

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HQ 953901

August 13, 1993

CLA-2 CO:R:C:T 953901

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.10.4025

Area Director
U.S. Customs Service
P.O Box 619050
Dallas/Ft. Worth, Texas 75261

RE: Request for Internal Advice No. 25/93; TYVEK jackets; TYVEK is a fabric classifiable in heading 5603; fabrics of 5603, HTSUSA, are classifiable in heading 6210, HTSUSA

Dear Sir:

This is in response to your memorandum CLA-2-D:C SS, dated March 19, 1993, requesting Internal Advice regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of TYVEK jackets. A sample and accompanying literature was submitted to this office for examination.

FACTS:

The submitted sample consists of a TYVEK jacket. TYVEK is a nonwoven material made of spunbonded olefin fabric synthetically formed from high density polyethylene fibres (0.5-10 micrometer). As outlined in the accompanying material describing the characteristics of TYVEK, TYVEK is an extremely versatile material, offering a balance of physical characteristics that combine some of the properties of paper, film and cloth.

The importer, Billwin Limited, argues that the jackets should be classified as articles of plastic in heading 3926, HTSUSA. You disagree, stating that the garment should be classified in heading 6201, HTSUSA, as an outerwear jacket.

ISSUE:

What is the proper classification for the subject article?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

The competing provisions, based on the assertions of the above named parties, for the subject article are: heading 3926, HTSUSA, heading 6201, HTSUSA, and heading 6210, HTSUSA.

Chapter 39, HTSUSA, provides for plastics and articles thereof. Chapter Note 2(l) to Chapter 39, HTSUSA, states:

This Chapter does not cover:

Goods of Section XI (textiles and textile articles)

Section XI, HTSUSA, provides for textiles and textile articles, and includes chapters 50 through 63. Section Note 1(g) to Section XI, HTSUSA, states:

This Section does not cover:

Monofilament of which any cross-sectional dimension exceeds 1mm or strip or the like (for example, artificial straw) of an apparent width exceeding 5mm, of plastics (Chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament or strip (Chapter 46);

According to the literature provided to this office, fibers less than one millimeter in cross-sectional dimension are used to form the fabric. As the fibers are considered to be textile, the fabric they form and the resulting garment would thus be considered a textile in accordance with Note 1(g) of Section XI, HTSUSA. As the article is considered a textile, it is excluded from classification as a plastic in chapter 39, HTSUSA.

Chapter 62 provides for articles of apparel and clothing accessories, not knitted or crocheted. The two competing provisions in this chapter in which the garment could be classified are heading 6201, HTSUSA, which provides for, inter alia, outerwear jackets, and heading 6210, HTSUSA, which provides for garments made up of fabrics of heading 5602 or 5603, HTSUSA.

Heading 5603, HTSUSA, provides for nonwovens, whether or not impregnated, coated, covered, or laminated. Nonwovens are defined in that heading as:
a sheet or web of predominantly textile fibres oriented directionally or randomly and bonded. These fibres may be of natural or man-made origin. They may be staple fibres (natural or man-made) or man-made filaments or be formed in situ.

Accordingly, TYVEK, which is a nonwoven fabric, of man-made origin and bonded, is a fabric of heading 5603, HTSUSA.

Note 5 to chapter 62, HTSUSA, states:

Garments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210.

As per Note 5 to chapter 62, HTSUSA, where a determination must be made between heading 6201, HTSUSA, and 6210, HTSUSA, classification devolves to heading 6210.

The garment is accordingly classified in heading 6210, HTSUSA (See also, HQ 085419, dated January 26, 1990, HQ 082931, dated November 8, 1989, HQ 088368, dated April 12, 1991, for further holdings in regard to articles consisting of TYVEK).

HOLDING:

The TYVEK garment is classifiable in subheading 6210.10.4025, HTSUSA, which provides for other garments made up of fabrics of heading 5602 or 5603. The applicable rate of duty is 17 percent ad valorem and the textile category is 659.

A copy of this decision should be furnished to the initiator of the Internal Advice Request.

Sincerely,

John Durant, Director

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