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HQ 963596




January 7, 2002

CLA-2 RR:CR:TE 963596 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0058; 6211.43.0091

Port Director
U.S. Customs Service
10 Causeway Street, Room 603
Boston, Massachusetts 02222-1059

RE: Decision on Application for Further Review of Protest No. 0401-98-100145, filed June 24, 1998, Concerning the Classification of Firefighters' Protective Garments; T.D. 91-78

Dear Sir:

This is a decision on an application for further review (AFR) of a protest timely filed against your decision in the classification and liquidation of eleven entries of firefighters' jackets and trousers that were entered in 1997.

FACTS:

You classified the men's jackets in subheading 6211.33.0058, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), textile category 634, the provision for “Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys': Of man-made fibers, Jackets and jacket-type garments excluded from heading 6201," with a general column one duty rate (in 1997) of 16.7 percent ad valorem. You classified the women's jackets and the men's and women's trousers in subheading 6211.43.0091, HTSUSA, textile category 659, the provision for “Track suits, ski-suits and swimwear; other garments: Other garments, women's or girls': Of man-made fibers, Other," with a general column one duty rate (in 1997) of 16.7 percent ad valorem.

The protestant claims that all of the garments should be classified in subheading 6210.50.50, HTSUSA, presumably, at the ten digit level, in subheadings 6210.50.5020, HTSUSA, textile category 635, the provision for "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women's or girls' garments: Of man-
made fibers: Other, Anoraks (including ski-jackets), windbreakers and similar articles;" and 6210.50.5035, HTSUSA, textile category 648, the provision for "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women's or girls' garments: Of man-made fibers: Other, Trousers, breeches and shorts." The general column one duty rate for the two provisions (in 1997) is 7.5 percent ad valorem.

The goods at issue are described on entry documents as men's and women's fire coats and fire trousers. In the attachment to the protest, the protestant, through counsel, notes that "[a] ruling on the garments that are the subject of this protest was issued by Customs Headquarters in April 1997...." In the ruling to which the protestant refers, i.e., Headquarters Ruling Letter (HQ) 959732, dated April 28, 1997, the merchandise under consideration was described as firefighters' protective garments essentially consisting of three layers of fabric: a) an outer shell of fabric made from a woven, inherently nonflammable, synthetic material composed of a meta/para-aramid combination; b) a middle layer moisture barrier, made of a waterproof, breathable, microporous, polytetrafluoro-ethylene, laminated to a nonwoven "spunlace" (composed of an 85 percent meta-aramid and 15 percent para-aramid blend); and c) an inner layer thermal barrier consisting of a needlefelt nonwoven (composed of various blends of inherently flame resistant synthetic fibers) quilt stitched to an inner woven lining composed of a 50/50 meta-aramid flame retardant viscose blend.

ISSUE:

Whether the firefighters' garments are classified in provisions under heading 6211, HTSUSA, based on the composition of the outer shell and in accordance with Treasury Decision (T.D.) 91-78.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) 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 GRI.

Heading 6210, HTSUSA, covers "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907." Heading 6211, HTSUSA, covers "Track suits, ski-suits and swimwear; other garments."

Pursuant to 19 CFR Part 177.24 ("Criteria for further review"), further review of a protest which would otherwise be denied by the Port Director shall be accorded a party filing an AFR which meets the requirements of section 174.25 when the decision against which the protest was filed:
a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
d) Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to section 177.11(b)(5) of this chapter.

Although an AFR was approved for the subject protest, with regard to criterion "b" above, the protestant, through counsel, does not allege that the decision against which the protest was filed involves a question of law or fact not previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. In fact, the previously cited ruling, HQ 959732, dated April 28, 1997, was issued to the importer who is the current protestant, and who concedes that the ruling concerned merchandise which is the same or substantially similar to that at issue in the protested entries.

In HQ 959732, the firefighters' protective garments at issue were classified in subheadings 6211.33.00, and 6211.43.00, HTSUSA, as men's jackets, and as other garments (men's and women's trousers and women's jackets), respectively. We noted that the purpose of all three layers was clearly to provide protection, and that in the past, Customs had classified garments composed in part of linings or interlinings of specialized fabrics, or plastic membranes laminated to fabrics, or with heavy nonwoven insulating layers under heading 6113 (as garments made up of knitted or crocheted
fabrics of heading 5903, 5906 or 5907), or under heading 6210, based on the position that a garment was considered "made up" of any fabric which imparted a significant characteristic of the garment.

We also noted that that position had changed with the issuance of Treasury Decision (T.D.) 91-78, which was approved August 9, 1991, and became effective December 11, 1991. In T.D. 91-78, Customs held that in headings 6113 and 6210, HTSUSA, the term "made up" refers to only that portion of a garment, e.g., the outer shell, which is considered in determining the ultimate legal classification of that garment. Although linings, interlinings or nonwoven insulating layers impart desirable, and sometimes necessary, features to garments, it is usually the outer shell which imparts the essential character. It was noted that headings 6113 and 6210, HTSUSA, refer to garments "made up of" certain fabrics, and that Note 7 to Section XI, HTSUSA, defines the term "made up" as requiring that a garment be sewn or otherwise assembled. We then concluded that, to constitute a "made up" garment within the purview of Note 7, the garment must be advanced to such a state that its identity is certain. While the presence of a nonwoven fabric insulating layer or a waterproof lining may make a garment suitable for certain uses, the garment's identity is not certain absent the outer shell, which usually imparts the garment's essential character, and normally creates the jacket or other garment.

Although in HQ 959732, as here, it was argued that the classification of firefighters' garments present an "extraordinary" case, not one which is usual or normal, we noted then, as now, that firefighting garments are clearly protective garments, and that guidance as to their classification is provided in the Explanatory Notes. In part, the EN to heading 6211 state:

The provisions of the Explanatory Note to heading 61.12 concerning track suits, ski suits and swimwear and of the Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis [i.e., generally the same], to the articles of this heading....

The EN to heading 6114 state, in pertinent part, that the heading [and, mutatis mutandis, heading 6112] includes, inter alia :

(1) Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc. [Emphasis added.]

In HQ 951357, dated January 12, 1993, we noted that the HTSUS, as distinguished from the Tariff Schedules of the United States (TSUS), expands the types of items classifiable as wearing apparel to include protective clothing previously excluded from

TSUS provisions, "namely, flight suits, anti-radiation suits, certain protective sports clothing, fire protection suits, etc." (Emphasis added.) Firefighters' protective garments therefore constitute wearing apparel that is classifiable under heading 6211, HTSUSA.

Relative to criterion "a" of the above criteria for further review, the protestant, through counsel, alleges that the Port's denial of the protest is inconsistent not with HQ 959732, but with HQ 958793, dated August 4, 1997. In the allegedly inconsistent HQ 958793, this office classified a pair of boys' woven swim trunks in subheading 6211.11.8020, HTSUSA, finding that the woven cotton inner shell imparted the garment's essential character. Our basis for that finding, however, was the fact that the inner shell remained "visually impenetrable" when the flimsy nylon outer shell of the swimwear was wet, a key characteristic for modesty. The translucent (when wet) outer shell was considered to be merely a styling feature. It is clear that the decision protested is not inconsistent with HQ 958793, nor does it concern merchandise that is the same or substantially similar to that classified in HQ 958793. The ruling's analysis is plainly not relevant to the classification of firefighters' protection suits.

Apparently with respect to satisfying criterion "c" above, Protestant, through counsel, argues that, since Customs consulted the experts of other customs administrations (including Canada's) before issuance of T.D. 91-78, Customs should reconsider and allow the protest based on a certain decision by a Canadian tribunal. In Bristol Uniforms North America Inc. [the current protestant] v. Deputy M.N.R. [Minister of National Revenue for Customs and Excise], App. No. AP-95-253, decided January 14, 1997, the Canadian International Trade Tribunal (C.I.T.T.) held that firefighters' protective garments substantially similar to those at issue here were classifiable under heading 6210.

In T.D. 91-78, Customs did point out that the classification experts of several entities (including the U.S. International Trade Commission, the European Community, the Customs Cooperation Council, and the Canadian, Australian, and United Kingdom Customs services) had been consulted. The purpose of the consultations, however, was to quantify support for the view that, in all instances except the most extraordinary, the outer shell of a garment will provide the garment's essential character. All of the experts consulted, including Canada's, went so far as to state that "linings and interlinings should not be considered in determining whether garments are classifiable in Headings 6113 and 6210, HTSUS." With regard to Bristol Uniforms, the United States is not bound by the decision and we disagree with the reasoning contained therein. While international uniformity is certainly desirable in the interpretation of
provisions of the Harmonized System, the World Customs Organization (WCO) has procedures in place by which signatory countries may resolve differences as to the classification of particular goods.

In light of the above analysis, we find that the men's and women's fire coats and fire trousers are classified in subheadings 6211.33.0058 and 6211.43.0091, HTSUSA, the classifications assessed on the protested entries.

HOLDING:

The men's jackets are classified in subheading 6211.33.0058, HTSUSA, textile category 634, the provision for “Track suits...: Other garments, men's or boys': Of man-made fibers, Jackets and jacket-type garments excluded from heading 6201." The general column one duty rate (in 1997) is 16.7 percent ad valorem.

The women's jackets and the men's and women's trousers are classified in subheading 6211.43.0091, HTSUSA, textile category 659, the provision for “Track suits...: Other garments, women's or girls': Of man-made fibers, Other." The general column one duty rate (in 1997) is 16.7 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

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 renegotiations 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 internal issuance of the U.S. Customs Service, which is updated weekly and is available for inspection at your local Customs
office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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