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HQ W968350




September 28, 2007

CLA-2 OT:RR:CTF:TCM W968350 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0091

Port Director
U.S. Customs and Border Protection
9777 Via De La Amistad
San Diego, CA 92154

RE: Protest and Application for Further Review; Protest No. 2506-06-300033

Dear Port Director:

This is in response to Protest No. 2506-06-300033, with an application for further review, timely filed on June 22, 2006, by Porter, Wright, Morris & Arthur, on behalf of their client, Safariland, Ltd. The protest is against your decision to liquidate certain vests under the provision for other woven apparel in heading 6211, Harmonized Tariff Schedule of the United States (HTSUS), rather than under the provision for other knit apparel in heading 6114, HTSUS, as claimed by the protestant. The merchandise was originally entered under heading 6211, HTSUS, with a claim of North American Free Trade Agreement (NAFTA) preferential treatment.

FACTS:

The garment at issue is a vest-type garment identified as “unisex vest NS style, Part No. A-X000-NSZ – a black nylon and polyester vest with pockets designed for ballistic inserts.” The garment is designed to be a bullet proof vest, but does not function as such at the time of importation as it is imported without the ballistic inserts.

The garment is constructed of both knit and woven fabrics. Five different fabrics are used in the construction of the garment and these fabrics have been identified as follows:

FAB-05800BKA-03: Woven Polyester of Thai origin FAJ-05400BKA-01: Knit Nylon of U.S. origin VEA-05000BKA-02: Knit hook and loop of U.S. origin ELA-00200BKA-02: Woven Polyester of U.S. origin VEA-01200BKA-01: Woven hook and loop of U.S. origin (visibly coated on one side)

The outer surface area of the garment consists of 52.66 percent knit fabric and 47.34 percent woven fabric. The protestant claims that the front of the garment consists of 90 percent knit fabric and only 10 percent woven fabric.

The garment consists of two pieces, front and back, which are attached to each other with straps and hook and loop closures. The front piece is constructed with a base open work knit fabric (small open spaces uniformly throughout the fabric) upon which additional fabrics are sewn to create the front piece. These additional fabrics include the woven polyester fabric of Thai origin at the top center of the garment extending almost seven inches from the bottom of the neck curve down the front of the garment. The woven fabric is bordered by two different knit fabrics (the knit hook and loop fabric forming the top of the sides and the same knit fabric used as the base fabric forming the rest of the sides down to the bottom of the arm curvature. The knit hook and loop fabric is again used across the waist area extending about six inches in height. This fabric panel includes a zipper across its width to allow for insertion of a ballistic insert. The base knit fabric extends below the waist area as a tail.

The back piece is constructed with the same base knit fabric as the front piece. Woven polyester fabric of Thai origin covering the entire back from top to waist area is sewn onto the knit base fabric. A zipper is sewn into the woven fabric at the waist area to allow for insertion of a ballistic insert. Straps are sewn on each side at the waist area and at the shoulder area to allow for attachment of the back piece to the front piece. The base knit fabric extends below the waist area as a tail.

As noted above, you liquidated the merchandise at issue on March 31, 2006, under heading 6211, HTSUS, specifically, in subheading 6211.43.0091, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), but denied the claimed NAFTA preferential duty rate. Subheading 6211.43.0091, HTSUSA, provides for women’s or girls’ other garments, not knitted or crocheted, of man-made fibers, other. A protest was timely filed on June 22, 2006, against your decision claiming the merchandise is correctly classified under subheading 6114.30.30, HTSUS, as other knitted garments of man-made fibers. We note that at this time the port asserts proper classification of the merchandise is in subheading 6211.43.0076, HTSUSA, which provides for other garments, not knitted or crocheted, of man-made fibers, vests.

Further review was properly accorded to this protest under 19 CFR § 174.24(d) as it involves questions which Customs and Border Protection (CBP) refused to consider in the form of a request for internal advice. ISSUE:

Is the bullet proof vest at issue classified as an other garment of heading 6114, HTSUS, or heading 6211, HTSUS, and does the garment qualify for preferential treatment under the NAFTA?

LAW AND ANALYSIS:

Classification under the HTSUS 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 2 through 6 may then be applied in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

In this case, there is no dispute that the garment at issue is classifiable as a women’s or girls’ other garment. The dispute lies in whether the garment is classifiable based upon its knit fabric or its woven fabric. The garment is, prima facie, classifiable in heading 6114, HTSUS, as an other knit garment, or in heading 6211, HTSUS, as an other garment, not knitted or crocheted.

GRI 3 provides that when a good is classifiable in two or more headings, for any reason, the heading which provides the most specific description is preferred. GRI 3(a). However, if each heading refers to only part of the materials or substances contained in the composite good at issue, then the headings are equally specific and resort must be made to GRI 3(b), that is, classification becomes dependent upon the material, substance or component of the good that imparts its essential character. Of course, if one cannot discern which material, substance or component imparts the essential character to a good, then classification lies in the heading which occurs last in the tariff among those headings under consideration. GRI 3(c).

When considering the classification of apparel made up of woven and knit fabrics, guidance may be found in HQ 084118, dated April 13, 1989. In that memorandum, we stated with regard to upper body garments:

. . ., if one component exceeds 60 percent of the visible surface area, that component will determine the classification of the garment unless the other component:
forms the entire front of the garment; or provides a visual and significant decorative effect (e.g. a substantial amount of lace); or is over 50 percent by weight of the garment; or is valued at more than 10 times the primary component.

If no component comprises 60 percent of the visible surface area, or if any of the above four listed conditions are present, classification will be according to GRI 3(b) or 3(c), as appropriate.

. . . GRI 3(c) should not be used unless it cannot be clearly determined which component gives the garment its essential character.

In the case of the bullet proof vest at issue, neither the knit nor woven fabric exceeds 60 percent of the visible surface area of the garment. Therefore, classification is based on GRI 3(b) (essential character), or GRI 3(c) (heading which appears last in the tariff). In general, in considering “essential character”, it has been construed to mean the attribute, which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. EN (VIII) to GRI 3(b) provides further factors which aid in determining the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be considered, though the importance of certain factors will vary between different kinds of goods.

While CBP has in previous rulings based its classification of a garment on the fabric comprising the front of the garment, those decisions were generally based on the visual impact of the front of a garment. See HQ 958122, dated August 21, 1995; HQ 955640, dated March 22, 1994; HQ 956514, dated December 15, 1994; and, HQ 960407, dated October 23, 1997. In the case of this garment, it is not worn for fashion, but for protection. While often worn over other clothing, it may be worn under other clothing. The visual impact of the front of the garment is of little importance in this garment. The front is equally as important as the back. Both the front and back will contain ballistic inserts to protect the wearer from bullets. Therefore, we cannot limit our consideration of the fabrics in this garment to only the fabrics making up the front piece. We must consider the importance of each fabric in the construction of both the front and back pieces of this garment.

The base open work knit fabric is the fabric closest to the body. While one might argue that portions of this fabric are a lining, we would disagree. The nature of this garment requires a two-fabric construction to create pockets into which the ballistic inserts will be placed. Although a bullet proof vest is normally worn over other clothing, the open work knit fabric serves to make the garment more comfortable and allows for greater air flow. The woven fabric, used in constructing the back of the garment and partly in the front construction, adds stability to the garment construction. As such, both the knit and woven fabrics contribute important attributes to the garment.

The outer surface area of this garment consists of approximately 52.66 percent knit fabric and 47.34 percent woven fabric. As neither fabric clearly predominates in the outer surface area of this garment and each contributes an important role to the construction of the garment, we find that neither can truly be said to impart the essential character of the garment. Therefore, classification of this garment is based on the application of GRI 3(c).

As heading 6211, HTSUS, appears after 6114, HTSUS, in the tariff schedule, the garment is classified in heading 6211, HTSUS. Specifically, the garment is classified in subheading 6211.43.0091, HTSUSA, as an other, other garment. Although referred to as a “vest”, this garment is not a vest in the common understanding of such a garment

“Vest” is defined, in relevant part, in Mary Brooks Picken’s A Dictionary of Costume and Fashion, at 367, as “Short, close-fitting garment, without sleeves; waist-length in back, below waist in front; similar to man’s waistcoat or vest. Usually worn with suit., but is a protective garment consisting of two pieces connected by straps with open sides and shoulders. There is substantial precedent classifying substantially similar garments as “other” garments rather than as “vests” under heading 6211, HTSUS. See HQ 955878, dated August 2, 1994; HQ 965821, dated December 9, 2002; NY 955878, dated August 2, 1994; NY 811076, dated June 19, 1995; NY B85625, dated June 3, 1997; NY L81496, dated January 18, 2005; NY L82368, dated March 9, 2005; and, NY H86579, dated January 18, 2002. We are aware of NY B86958, dated July 15, 1997, issued to the protestant for a bullet proof vest which classified the garment therein as a vest under heading 6211, HTSUS. The garment in NY B86958 was classified in subheading 6211.43.0076, HTSUSA. We cannot discern from the description of the garment at issue in that ruling whether it is the same garment at issue here. We accept the protestant’s assertion that the ruling pertained to a different garment. We note that the ruling is at odds with the previously cited rulings as to the classification of the garment at the statistical level under subheading 6211, HTSUS, i.e., whether the garment is classifiable as a vest or other garment. We will consider whether a proposal to modify NY B86958 under the procedures of 19 U.S.C. § 1625 will be forthcoming.

With regard to the NAFTA eligibility of this garment, as a garment classified in subheading 6211.43, HTSUS, the non-originating Thai woven fabric must meet the tariff shift rule for garments of heading 6211.43, HTSUS, set forth in General Note (GN) 12(t). The Thai woven fabric is the fabric that determined the classification of the garment. Rule 35, Chapter 62, GN 12(t) provides:

A change to subheadings 6211.31 through 6211.49 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516, 5801 through 5802 or 6001 through 6006, provided that the good is both cut and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.

As the Thai woven fabric is woven polyester fabric of heading 5407, HTSUSA, i.e., a woven fabric of synthetic filament yarn, and a change to subheading 6211.43 is not allowed from chapter 54, the garment does not qualify for preferential treatment under the NAFTA.

HOLDING:

The bullet proof vest at issue is classified in subheading 6211.43.0091, HTSUSA, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of man-made fibers, Other. The general column one duty rate at the time of entry was 16 percent ad valorem. The garment is not eligible for preferential treatment under the NAFTA. Merchandise entered in subheading 6211.43.0091, HTSUSA, falls within textile category 659.

The protest is denied. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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