CLA-2 CO:R:C:G 081785 SM
Mr. John Goodrich
International Operations
Fingerhut Corporation
4400 Baker Road A-195
Minnetonka, Minnesota 55343
RE: Tariff classification of sauna belt and shorts
Dear Mr. Goodrich:
Your letter of September 1, 1987, addressed to our New
York office, requested a tariff classification ruling for a
sauna belt and shorts to be imported from Taiwan. New York
ruling 824984 of February 3, 1988, gave a tariff classifica-
tion under the Tariff Schedules of the United States Anno-
tated. The question of classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) was
referred to this office.
FACTS:
The merchandise consists of a pair of sauna shorts and a
belt, Style No. PC-12208. The shorts are a pull-on style and
feature seams covered on the outside with braid. Apparently
the shorts and belt are made of the same material which,
according to a Customs laboratory report of January 13, 1988,
is a chlorinated expanded synthetic rubber laminated on one
surface to a nylon knit fabric. The nylon fabric is on the
outside of the garment. The material weighs 958.7 grams per
square meter, and the chlorinated synthetic rubber accounts
for over 91 percent of the weight. Descriptive literature
provided with the sample indicates that the garment is
designed to promote loss of weight and inches when worn during
work and play.
ISSUE:
How are the synthetic rubber and nylon shorts and belt
classified under the HTSUSA?
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LAW AND ANALYSIS:
Classification under the HTSUSA is in accordance with
the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the
terms of the headings of the tariff and any relative section
or chapter notes.
Heading 6113, HTSUSA, provides for garments, whether
men's or women's, made up of knitted or crocheted fabrics of
headings 5903, 5906, or 5907, HTSUSA. The Explanatory Notes,
the official interpretation of the HTSUSA at the international
level, state that heading 6113 includes raincoats, oilskins,
divers' suits, and anti-radiation protective suits, although
it is not limited to these articles. The sauna shorts are
garments made up of a fabric of the type used for some divers'
suits, and thus it appears that they, too, are intended to be
covered by heading 6113, HTSUSA. However, we must determine
whether the fabric of the shorts and belt would in fact be
classifiable under one of the specified headings: 5903, 5906,
or 5907, HTSUSA.
Heading 5903, HTSUSA, provides for fabric-plastic com-
binations, and so is not applicable here.
Heading 5906, HTSUSA, provides for rubberized textile
fabrics other than tire cord. The fabric of the shorts is
made with a synthetic rubber; however, Note 1 of Chapter 40,
HTSUSA, provides that throughout the nomenclature the expres-
sion rubber includes synthetic rubber.
Note 4 of Chapter 59, HTSUSA, includes two relevant
limitations on the meaning of "rubberized textile fabrics" in
heading 5906. Note 4(a) provides that this heading covers
textile fabrics impregnated, coated, covered or laminated with
rubber, of a weight not exceeding 1,500 g/m2. The Customs
laboratory report, as indicated above, shows that the fabric
of the shorts and belt weighs 958.7 g/m2, and therefore it
falls within this description.
Note 4(d) provides that sheets of cellular rubber
combined with textile fabric are covered by heading 5906 if
the textile fabric is more than just reinforcement.
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We do not consider that the nylon fabric is present
merely to add strength to the rubber, e.g., to keep it from
tearing. While it may well perform that function, the nylon
would also protect the rubber from possible abrasion. Addi-
tionally, the fine knit and attractive color of the nylon
serve the aesthetic purpose of giving the fabric an attractive
appearance. We conclude that the sauna shorts are made up of
a fabric of heading 5906, HTSUSA, and are classifiable under
heading 6113, HTSUSA.
While the belt is of the same fabric as the shorts,
belts are not garments for tariff purposes. Heading 6217,
HTSUSA, provides for other made up clothing accessories. The
Explanatory Notes for this heading indicate that it is
intended to include textile belts of all kinds. We have ruled
previously that textile belts imported separately are clas-
sifiable under this heading. File 081619 of October 6, 1988.
Thus, no single heading provides for both the belt and the
shorts. Classification cannot be determined under GRI 1.
GRI 2(a), concerning incomplete or unassembled
articles, does not apply in this case.
GRI 2(b) provides that goods consisting of more than one
material or substance and appearing to be classifiable under
more than one heading, such as the garments and belts in ques-
tion here, must be classified according to GRI 3.
GRI 3(a) provides that the more specific heading is to
be preferred. 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 . . . ." In this
case different headings each refer to part only of the goods
to be classified. Thus classification cannot be determined
according to which heading is more specific.
GRI 3(b) provides that "[m]ixtures, 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 classi-
fied as if they consisted of the material or component which
gives them their essential character . . . ."
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The Explanatory Notes for GRI 3(b) provide interpreta-
tion of the terms essential character and goods put up in sets
for retail sale. The Notes state that goods put up in sets
for retail sale are those that:
(a) consist of at least two different articles
which are, prima facie, classifiable in
different headings . . .;
(b) consist of products or articles put up together
to meet a particular need or carry out a spe-
cific activity; and
(c) are put up in a manner suitable for sale
directly to users without repacking . . . .
The sauna shorts and belt consist of a textile garment and a
belt prima facie classifiable in different headings. These
articles are put up together to provide a coordinated outfit
to be worn during work or play, although similar belts are
sold separately. They are stated to be imported together; we
assume that they are ready for direct sale without repacking.
We conclude that the shorts and belt are classifiable as a
set.
The Explanatory Notes state further that the factor
determining which article of a set provides its essential
character will vary with different kinds of goods. It may be
"the nature of the material or component, its bulk, quantity,
weight or value, or . . . the role of a constituent material
in relation to the use of the goods." With regard to the
style under consideration here, as in virtually every instance
involving belt and garment combinations, it is the garment
which provides the essential character. The belt is merely an
accessory to the garment and, barring exceptional circum-
stances, is not the main reason for the existence of the
combination or the primary motivating factor governing the
purchase of the two articles.
HOLDING:
The sauna shorts and belt are classified as a set under
subheading 6113.00.0085, HTSUSA, textile category 659, a pro-
vision for other men's garments made up of knitted fabric of
heading 5906, or subheading 6113.00.0090, HTSUSA, textile
category 659, if women's. Pursuant to the December 23, 1988,
directive from the Committee for the Implementation of Textile
Agreements, when textile garments and accessories are entered
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as sets, separate visa and quota reporting is required where
separate textile apparel categories exist. In this case, if
the belt were classified separately, under subheading
6117.80.0030, HTSUSA, the textile category would be the same
as that for the shorts, i.e., 659.
Because of the changeable nature of the statistical
annotation (the ninth and tenth digits of the tariff number)
and the textile restraint categories, you should contact your
local Customs office before importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport Area
cc: Legal Reference Section
cc: CITA
cc: NIS Joan Mazzola
cc: NIS William Raftery
cc: NIS George Barth