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HQ 964545




December 4, 20000

CLA-2 RR:CR:TE 964545 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 8531.80.9050

Ms. Amanda Xu
World Trading Inc.
10 Cedar Glen
Irvine, CA 92604

RE: Revocation of NY E87707; Lighted safety vest from China

Dear Ms. Xu:

On October 15, 1999, Customs issued New York Ruling Letter (“NY”) E87707 to your company regarding the tariff classification of a lighted safety vest from China under heading 6117 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Upon review of similar merchandise which was recently considered by Customs for classification, Customs has determined that the subject merchandise is substantially similar and therefore, classification in heading 6117, HTSUSA, was incorrect. The correct classification for the product should be under heading 8531, HTSUSA, which provides for electric sound or visual signaling apparatus. NY E87707 is hereby revoked for the reasons set forth below.

FACTS:

The merchandise submitted for NY E87707 was described as a Blinking-Worker Reflexible Body Lights. The merchandise consists of mesh of a warp knit open work fabric. The safety vest fits over the upper torso and features a hook and loop strip front closure and open sides except for a 3 inch seam near the bottom. There are two 2 inch wide reflective plastic strips sewn from the front to the back of the vest and one 2 inch wide reflective plastic strip around the waist. The reflective plastic strip contains 12 to 19 flashing lights that run by battery. The item is used for worker safety in bad weather or in places with poor visibility.

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 three headings under the HTSUSA which must be considered for classification of the merchandise under consideration: 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.

It is Customs’ opinion that this article, in its entirety, is not classifiable based on one component. The lighted safety vest uses electricity to radiate and reflect light. The importer has combined an electronic lighting device with “traditional” neon colored safety vest. In essence, neither the textile provisions nor electrical provisions encompass the articles in entirety. Because the article consists 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 vest contains a light source which increases the retail value of the safety article and supports consideration of the light source. The light uses reflector strips that radiate a light source throughout that product and allows the lighted wearer to be visible from a longer distance than someone who is wearing a “regular” safety product, i.e., a safety vest without a self contained light source.

Although a consumer would perhaps purchase this particular safety product specifically for the added feature of the lighting unit, Customs must also give consideration to the fact that this safety vest appears to the naked eye to be virtually identical to other safety vests that do not have a lighting unit. The safety vest remains 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 item has a different quality and therefore, an 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 vest is properly classified in heading 8531, HTSUSA. This determination is consistent with NY E85273, dated August 25, 1999.

Customs has 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 determination therein.

HOLDING:

NY E87707 is hereby revoked.

The subject safety vest, described as Blinking –Worker Reflexible Body Lights, is 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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