CLA-2 RR:TC:TE 959732 RH
Mr. Alfred R. De Angelus
LIVINGSTON
De Angelus & Associates
1455 Pennsylvania Avenue, N.W., Suite 1150
Washington, D.C. 20004
RE: Firefighters' garments; protective garments; heading 6211;
T.D. 91-78; outer shell
Dear Mr. De Angelus:
This is in reply to your request dated July 9, 1996, on behalf of
Bristol Uniforms North America Inc., regarding the tariff
classification of firefighters' protective garments.
At your request, two of my staff attorneys met with you and your
client on December 3, 1996, to discuss the issues raised in your
letter.
You submitted samples of the fabrics used in the manufacture of
the garments for our consideration as well as a CONFIDENTIAL
video tape. We are returning the video tape with this letter.
FACTS:
The merchandise under consideration consists of firefighters'
protective garments which are made up of three layers of fabric,
described in your letter as follows:
a) The outer shell is a fabric made from a woven
inherently nonflammable, synthetic material of a
meta/para-aramid combination. The Bristol garments
have one of two types of fabric for the outer layer: - 2 -
Type one is Nomex III, which is a homogenous blend, by
weight, of 95% meta-aramid with 5% by weight para-aramid, Nomex Kevlar. The outer surface has a
fluorocarbon oleophobic application to improve water
resistance and water run-off.
Type two is Nomex Delta T, which is a homogeneous blend
by weight of 75% meta-aramid with 23% by weight para-aramid and 2% permanent anti-static fibre, P140.
b) The middle layer is a moisture barrier made of a
waterproof, breathable, microporous,
polytetrafluoroethylene laminated to a nonwoven
"spunlace" which is an 85% meta-aramid and 15% para-aramid blend.
This is either Tetratex or Goretex , as both brands
of nonwoven fabrics are used.
c) The inner layer is a thermal barrier consisting of a
needlefelt nonwoven, made from various blends of
inherently flame resistant synthetic fibers, quilt
stitched to an inner woven lining of a 50/50 meta-aramid flame retardant viscose blend.
These meta-aramids are known as Kermel or Nomex.
There are 61 different styles of garments constructed from these
fabrics. The garments are worn for firefighting and are designed
to provide protection from burn injury as a result of heat
exposure. The garments must be manufactured to meet National
Fire Protection Association Standards and are tested for thermal
insulation, nonflammability, strength, water resistance and
durability. These standards require that the firefighting
garments consist of the three layers described above.
You contend that the combination of the moisture barrier and the
thermal barrier constitute the essential character of the
firefighting garments due to their extraordinary and highly
specialized
nature as protective clothing. In your opinion, the garments are
classifiable under subheading 6210.50.50 of the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides
for garments made up of fabrics of headings 5602, 5903, 5906 or
5907.
Alternatively, if Customs classifies the garments based on T.D.
91-78 (by their outer shell), you submit that they are
classifiable under subheading 6202.93.45, HTSUSA (Jacket), and
subheading 6204.63.12, HTSUSA (Trousers).
ISSUE:
Whether the firefighter's garments are classifiable based on
their outer shell in accordance with T.D. 91-78? If not, what is
the correct tariff classification? - 3 -
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Customs
seeks guidance in interpreting the terms of the headings in the
Harmonized Commodity Description and Coding System Explanatory
Notes, which although not legally binding, are recognized as the
official interpretation of the Harmonized System at the
international level.
In the past, Customs 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, HTSUSA (garments made up of knitted or
crocheted fabrics of heading 5903, 5906 or 5907), or under
heading 6210, HTSUSA (garments made up of fabrics of heading
5602, 5603, 5903, 5906 or 5907), based on the position that a
garment was considered "made up" of any fabric which imparted a
significant characteristic of the garment. That position
changed as a result of T.D. 91-78, wherein Customs held that in
headings 6113 and 6210, HTSUSA, the term "made up" only refers to
that portion of a garment, e.g., the outer shell, which is
considered in determining the ultimate legal classification of
that garment. T.D. 91-78 further stated that while linings,
interlinings or nonwoven insulating layers do impart desirable
and, sometimes, necessary features to garments, it is usually the
outer shell which imparts the essential character to the garment
because the outer shell normally creates the garment.
In the comments portion of T.D. 91-78 we stated that "in almost
all instances (except in the most extraordinary cases), it is our
view that the outer shell will provide the essential character. .
. ." We further stated:
A garment, in our opinion, is normally formed or
created by its outer shell. Linings, interlinings, and
nonwoven insulating fabrics do not form or create a
garment. Rather, they add characteristics to the
garment which serve to further define the garment and
limit or expand the uses for which that garment may be
suitable . . . Accordingly, it is customs position
that while a heavy nonwoven fabric insulating layer, or
a waterproof lining or interlining may contribute
substantially to the characteristics of a garment, it
is the outer shell of the garment which usually
creates its identity (i.e., as a jacket, as pants,
etc.) and, therefore, it is the outer shell which
imparts the essential character to that article.
- 4 -
You claim that the Bristol garments should not be classified by
the outer shell in accordance with T.D. 91-78 because this is an
"extraordinary" case. In support of your argument, you submit
that the garments would not constitute firefighting garments
without the middle and inner layers. The linings in these
garments are more complex than other coats suitable for inclement
weather. They are what makes the garment suitable for
firefighting. Moreover, the garments are not created by the
outer shell which merely covers the layers that create the
firefighting garments and make them fire protective. They are
worn for firefighting duties in buildings, enclosed structures,
vehicles or vessels, and are designed to provide protection from
burn injury as a result of heat exposure or direct flame
exposure.
In further support of your claim, you submitted a report by the
President of International Personnel Protection, Inc., a research
and development consulting firm, entitled A GENERAL DESCRIPTION
OF FIRE FIGHTER PROTECTIVE CLOTHING DESIGN AND FUNCTIONS. He
states that according to thermal protective performance testing
the outer shell alone provides only 15.3% insulation, whereas the
full composition (outer shell, moisture barrier and thermal
barrier) provides 100% insulation. He further states that the
purpose of the outer layer is to provide protection to the wearer
from secondary hazards such as cuts, punctures, tears and
abrasions, and to provide protection to the garment. Basically,
the purpose of the outer layer is to protect the inner layers.
The firefighting garments are clearly protective garments.
Although firefighting garments are not specifically provided for
under a tariff heading, guidance as to their classification is
set out in the EN. The EN to heading 6211 state:
The provisions of the Explanatory Note to heading 6112
concerning track suits, ski suits and swimwear and of
the Explanatory Note to heading 6114 concerning other
garments apply, mutatis mutandis, to the articles of
this heading. However, the track suits of this heading
may be lined.
The EN to heading 6114 (Other garments, knitted or crotched)
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).
- 5 -
Moreover, Customs has interpreted protective clothing to include
fire protection suits. See, Headquarters Ruling Letter (HQ)
951357, dated January 12, 1993. In that case, we distinguished
between classification of protective-type garments under the
Tariff Schedule of the United States (TSUS), and the HTSUSA:
[U]nder the TSUS, items such as firemen's turnout
clothing, heat-reflective clothing and bomb suits were
not classifiable under the wearing apparel provision of
Schedule 3, TSUS, but under other residual provision
providing for other articles not specially provided
for, or textile materials, of in Schedule 7, TSUS,
under the provisions for sports equipment . . . Since
that time, HTSUSA has expanded the items classifiable
as wearing apparel to include items previously excepted
under those provisions, namely, flight suits, anti-radiation suits, certain protective sports clothing,
fire protection suits, etc. (Emphasis added).
We agree with you that the inner layers of the garment add
characteristics which define the garment and limit or expand its
use for firefighting. The thermal barrier (inner layer) provides
the majority of insulation to the garment to protect against
direct flame and burn injury. The moisture barrier (middle
layer) prevents water and other liquids from entering the
material and reducing insulation within the thermal barrier.
We do not agree with you, however, that the garments are
classifiable according to the inner layers, which you claim
impart the essential character. The purpose of these layers,
along with the outershell, is clearly to provide protection.
The garments are protective clothing that are designed
specifically for firefighting and are worn only for that purpose.
Thus, they are classifiable under heading 6211, in accordance
with the EN.
Finally, Note 8 to Chapter 62, pertains to classification of
garments by gender. It states:
Garments of this chapter designed for left over right
closure at the front shall be regarded as men's or
boys' garments, and those designed for right over left
closure at the front as women's or girls' garments.
These provisions do not apply where the cut of the
garment clearly indicates that it is designed for one
or other of the sexes.
Garments which cannot be identified as either men's or
boys' garments or as women's or girls' garments are to
be classified in the headings covering women's or
girls' garments.
In this case, the jackets will be classifiable under subheading
6211.43 if they are women's, and under subheading 6211.33 if they
are men's. The trousers cannot be identified as men's or women's
garments and they are, therefore, classifiable under subheading
6211.43.
- 6 -
HOLDING:
The firefighter garments are protective clothing classifiable
under heading 6211. If the jackets are designed for left over
right closure at the front they are classifiable as men's jackets
under subheading 6211.33.0058, HTSUSA, and the textile category
number is 634. If the jackets have a right over left closure
they are classifiable under subheading 6211.43.0078, HTSUSA, and
the textile category is 635. The firefighters' trousers are
classifiable under subheading 6211.43.0091, HTSUSA, and the
textile category is 659. All of the garments are dutiable at the
general column rate of 16.7 percent ad valorem.
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 available for inspection at your
local Customs office.
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 importing the merchandise to determine the
current applicability of any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division
Enclosure