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HQ 964384




December 4, 2000

CLA-2 RR:CR:TE 964384 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 8531.80.9050

Mr. Thomas J. O’Donnell
Ms. Lara A. Rutenbergs
Rodrigues O’Donnell Fuerst Gonzalez & Williams 20 North Wacker Drive
Suite 1416
Chicago, Illinois 60606

RE: Revocation of NY F84030; Flashing/ lighted safety vest, belt, arm band and pet collar from China

Dear Mr. O’Donnell and Ms. Rutenbergs:

This is in reply to your letter of July 28, 2000, on behalf of Illumination Polymer Technologies, Inc., requesting reconsideration of New York Ruling Letter (“NY”) F84030. On March 23, 2000, Customs issued NY F84030 to Eagle International, Ltd., on behalf of your client, Illumination Polymer Technologies, Inc., regarding the tariff classification of various lighted safety products. In NY F84030 the lighted safety vest was originally classified in subheading 6117.80.9540 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) as other made up knitted clothing accessories; the safety belt was classified in subheading 6217.10.9530, HTSUSA, as a clothing accessory; the flashing safety pet collar was classified in subheading 4201.00.3000, HTSUSA, as saddlery and harness for animals; and the flashing safety arm band was classified in subheading 8531.80.9050, HTSUSA, as other electric sound or visual signaling apparatus. In preparing this reply, consideration was also given to your letter of August 14, 2000.

Upon review, Customs has determined that the NY ruling letter which was issued to Eagle International, Ltd., erroneously classified the subject merchandise. The correct classification for the merchandise is set forth herein and the tariff classification for the lighted safety merchandise in NY F84030 is hereby revoked for the reasons set forth below.

FACTS:

NY F84030, dated March 23, 2000, provided HTSUSA classification for four different safety products, yet in your petition for reconsideration, you question the classification provided for the flashing safety vest, belt and pet collar but not the arm band. For ease of administration we are revoking NY F84030 in its entirety and issuing this ruling.

The first sample under consideration is a “Lighted Safety Vest.” You claim that the safety vest comes in both a “poncho” style and a “split” style. The split style safety vest has an adjustable band on the side of the vest connecting the front and back portions of the vest and has a front opening that is secured with a Velcro tab. The poncho style safety vest is worn over the head and the side Velcro strips attach anywhere on the front Velcro strip and serve as permanent closures to the side of the safety vest.

The safety vest is constructed of 100 percent nylon mesh fabric in either orange or lime green. The safety vest features 1 ¾ inch reflective plastic strips that extend over the shoulder from front to back. You claim that the “poncho” style safety vest also features a 2 inch reflective plastic strip across the front and back of the waist. The plastic strips are either yellow or white in color and contain a flexible lens through which a high intensity light is dispersed. The light can either remain steady or flash when activated by a switch on a battery pack powered by two AA batteries (not included). The battery pack is housed in a fitted nylon pouch with a Velcro closing which is sewn to the vest.

The second sample under consideration is a Flashing Safety Belt. The safety belt is worn around that waist and features an adjustable plastic buckle and a 15 inch long reflective strip which contains lights, and a battery pack powered by one standard watch battery (not included). The battery pack is attached to the end of the flexible lens and is protected and secured by a piece of nylon fabric with a Velcro tab. The safety belt is composed of woven 100 percent black nylon fabric.

The third sample under consideration is a Flashing Safety Pet Collar which is composed of 100 percent woven black nylon fabric. The pet collar features an adjustable plastic hook and loop fastener, metal ring for leash attachment, and a five-inch plastic reflective strip. The plastic strip contains the same flexible lens and battery pack powered by one standard watch battery (included). The battery pack is attached to the end of the flexible lens and is protected and secured by a piece of nylon fabric with a Velcro tab. The fourth sample under consideration is a Flashing Safety Arm Band. The arm band is composed of 100 percent nylon fabric and features an adjustable elastic band and a six inch reflective strip containing lights. The arm band also has battery pack powered by one standard watch battery which is included.

You have stated that the safety vest is designed, manufactured and marketed for police, crossing guards, construction workers, utility crews, aircraft employees and any other occupations where enhancing visibility is a safety requirement. You assert the safety products are also intended for outdoor enthusiasts who participate in activities such as running, walking, cycling, in-line skating and hunting.

ISSUE:

What is the proper tariff classification of the subject merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs may then be applied. The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

There are four headings under the HTSUSA which must be considered for classification of the subject merchandise: heading 4201, provides for saddlery and harness for animals; heading 6117, provides for other knitted or crocheted clothing accessories; heading 8513, provides for portable electric lamps designed to function by their own source of energy; and heading 8531, provides for electric sound or visual signaling apparatus.

Upon review, it is determined that no single heading within the HTSUSA specifically describes goods of this type. Because the merchandise cannot be classified pursuant to GRI 1, we apply the remaining GRIs in their appropriate order. GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings.

In your brief for reconsideration of NY F84030 filed in the Office of Regulations & Rulings, you claim that the subject articles are “’more than’ mere vests, belts, or collars.” The “more than” doctrine was a principle of classification under the Tariff Schedules of the United States (“TSUS”), the precursor to the HTSUSA. Reference to the “more than doctrine” is inappropriate for classification of merchandise under the Harmonized Tariff Schedule.

Headquarters Ruling Letter (HRL) 080969, issued November 21, 1988, which involved classification under the TSUS explained, in pertinent part, that the "more than" doctrine, provided that:

[w]here an article is in character or function something other than as described by a specific statutory provision-either more limited or more diversified-and the difference is significant, it cannot find classification within such provision. It is said to be more than the article described in the statute. Robert Bosch v. United States, 43 Cust. Ct. 96, C.D. 3881 (1969).

GRI 2(b) is the HTSUSA counterpart to the "more than" doctrine. Similarly, EN XII to GRI 2(b) cautions that:

[GRI 2(b)] does not, however, widen the heading so as to cover goods which cannot be regarded, as required under Rule 1, as answering the description in the heading; this occurs where the addition of another material or substance deprives the goods of the character of goods of the kind mentioned in the heading.

We agree with you that these articles, in their entirety, are not classifiable based on one component. The lighted safety merchandise uses technology to radiate and reflect light with a miniscule amount of electric current to operate. The importer has combined this technology with “traditional” neon colored safety articles such as a vest, belt, arm band and pet collar. In essence, neither the textile provisions nor electrical provisions encompass the articles in entirety. Because the articles consist of a combination of materials or components which are prima facie classifiable under two or more headings, we are directed by the GRIs to classify the articles pursuant to GRI 3 which states:

(a). The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

As the electronic lighting devices as well as the underlying textile components could be classified in different headings, we are required to continue to the next principle, i.e., GRI 3(b):

(b). Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The ENs to GRI 3(b) state:

(VII). In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(VIII). The factor which determines the essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The subject safety articles incorporate a visual signaling device, developed by Illumination Polymer Technologies, Inc., using a technology that radiates and reflects light and needs a miniscule amount of electric current to operate. The light source increases the overall retail value of the safety articles and supports consideration of the light source. The light uses a lens that magnifies, disperses and radiates a light source throughout that product. The lighting unit can be switched for constant or rapid flashing light. The lighted wearer is visible from a longer distance than someone who is wearing a “regular” safety product, i.e., a safety vest or pet collar without a self contained light source.

Although a consumer would perhaps purchase these particular safety products specifically for the added feature of the lighting unit, Customs must also give consideration to the fact that these safety products appear to the naked eye to be virtually identical to other safety products that do not have a lighting unit. The safety vest, arm band, pet collar and belt remain functional as an identifier and will provide a greater degree of visibility during the daytime even when the lighting unit is not in operation. It is only when you activate the lights that the items have a different quality and therefore, essential character determination cannot readily be made pursuant to GRI 3(b).

GRI 3(c) provides:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Of those headings under consideration, the HTSUSA headings which refer to the classification of the lighted unit would occur last in the tariff. There are two possible headings which must be considered for such classification under the HTSUSA: heading 8513, provides for portable electric lamps designed to function by their own source of energy, and heading 8531, provides for electric sound or visual signaling apparatus.

In applying the rule of ejusdem generis to determine whether an item is embraced within a particular class, the courts have looked to the articles enumerated within that class to ascertain the characteristics they have in common. Kotake Co., Ltd. v. United States, 58 Cust. Ct. 196, C.D. 2934 (1967). The class of items classified within heading 8513 is that typical of lamps which emit a constant stream of light such as flashlights and certain types of lanterns. See Headquarters Ruling Letter (HQ) 951855, dated July 24, 1993; HQ 084852, dated March 28, 1990; HQ 953262, dated July 26, 1993; HQ 088993, dated July 29, 1991; and HQ 084852, dated March 28, 1990,

The ENs for Heading 8531, HTSUSA, state in pertinent part:

With the exception of signaling apparatus used on cycles or motor vehicles and that for traffic control on roads, railways, etc., this heading covers all electrical apparatus used for signaling purposes, . . . using visual indication (lamps, flaps, illuminated numbers, etc.), and whether operate by hand or automatically.

(emphasis added.) As the class of goods classified in heading 8531, HTSUSA, is designed to be broad and encompass all electronic signaling apparatus not more specifically provided for elsewhere within the tariff schedule, Customs determines that by virtue of ejusdem generis the subject flashing safety belt, flashing safety arm band and flashing safety collar are within the purview of heading 8531, HTSUSA. This determination is consistent with NY E85273, dated August 25, 1999. By virtue of GRI 3(c), as heading 8531 appears last in the tariff schedule, the subject flashing safety belt, flashing safety arm band and flashing safety pet collar are properly classified in heading 8531, HTSUSA.

As part of this request for reconsideration of the subject flashing safety vest merchandise, we have reviewed the analysis behind the classification of safety vests under the HTSUSA. Customs has consistently classified safety vests, whether of textile or plastic as “clothing accessories” either in heading 3926, HTSUSA, as articles of plastics or in heading 6117, HTSUSA as other made up knit articles. See HQ 963614, 963615, 963616, Final Notice in Customs Bulletin Vol. 34, No. 22, May 31, 2000. In addition, see HQ 961170, dated March 24, 2000; HQ 963581, dated March 31, 2000; HQ 088549, dated September 4, 1991; NY E89696, dated December 6, 1999; NY E87515, dated October 6, 1999; and NY E82825, dated June 17, 1999.

If safety vests are determined by Customs to be “embedded” or completely covered” in plastics, then classification is eo nomine provided for within the HTSUSA and proper pursuant to GRI 1 according to the relevant legal notes such as:

Legal Note 2(a)(3) to Chapter 59, HTSUSA, which states that Heading 5903 applies to:

Textile fabrics impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular) other than:

(3) Products in which the textile fabric is either completely embedded in plastic or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resultant change in color (chapter 39). (emphasis added).

The intent of Note 2(a)(3) to Chapter 59 is to classify those products “embedded in” or “completely covered” with plastics under the headings that provide for plastics or articles of plastics because they have acquired the characteristics of plastics. Since the fabric from which a safety vest is constructed would be classifiable as a plastics good in chapter 39, a safety vest would be classifiable as an article of plastics. Thus, pursuant to GRI 1, a safety vest “embedded” or “completely covered” in plastics would be classified in subheading 3926.20.9050, HTSUSA, which provides for other apparel and clothing accessory articles of plastics.

On the contrary, if safety vests are not “embedded” or “completely covered” in plastics, but rather are constructed of nylon or polyester fabric which is typical of such merchandise, then the safety vests are properly classified in heading 6117, HTSUSA, as other made up knit clothing accessories or in heading 6217, HTSUSA, as other made up woven clothing accessories. Using a GRI 1 analysis, HQ 088549, dated September 4, 1991, and HQ 088056, dated February, 13, 1991, reasoned that safety vests are “worn over other clothing, for purposes of identification . . . [and] as such, [are] considered a clothing accessory, of textile material, which is properly included within heading 6117, HTSUSA.” See HQ 088549, dated September 4, 1991. This rationale is hereby upheld, however, as previously stated, the subject flashing safety vest is a composite good and as such cannot be eo nomine classified within heading 6117, HTSUSA.

As previously stated, the subject flashing safety vest cannot be classified pursuant to GRI 1 since it is a composite good. Nor can classification be determined pursuant to GRI 3(b) since the essential character depends on both the lighted unit and the visible nature of the safety vest itself. Therefore, by virtue of GRI 3(c), classification of the subject safety vest is therefore proper in heading 8531, HTSUSA, as an electric sound or visual signaling apparatus.

Customs has classified safety vests similar to the flashing safety vest under consideration under heading 6117, HTSUSA, which provides, in part, for other made up clothing accessories and also has classified a belt similar to the flashing safety belt under consideration under heading 8513, HTSUSA, which provides, in part for, portable lamps. However, Customs is in the process of reviewing the classification determinations therein.

HOLDING:

NY F84030 is hereby revoked.

The subject flashing safety belt, flashing safety arm band, flashing safety collar, and flashing safety vest, by virtue of GRI 3(c), are properly classified under subheading 8531.80.9050, HTSUSA, which provides for “Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof: Other apparatus: Other: Other: Other.” The subject merchandise is dutiable at the general column one rate of 1.3 percent ad valorem.

Because GRI 3(c) has been used to classify this merchandise, it is limited to the specific facts and articles which are the subject of this decision. A slight change in the facts or articles could result in an essential character determination under GRI 3(b). Accordingly, importers of similar merchandise should review all of the rulings discussed in this decision and if doubt exists as to classification, request a ruling from the Customs Service.

Sincerely,

John Durant, Director

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