CLA-2 RR:CTF:TCM 967884 BtB
Mr. Pete Mento
Ms. Anne Schmidt
Expeditors Tradewin, LLC
1015 Third Avenue, 12th Floor
Seattle, WA 98104
Re: Pants made up of fabric of heading 5903
Dear Mr. Mento and Ms. Schmidt:
This is in reply to your letter dated July 20, 2005, on behalf of No Fear Motocross (“No Fear”), to the National Commodity Specialist Division (“NCSD”) of U.S. Customs and Border Protection (“CBP”) requesting classification of the No Fear Tank 1068 and Elektron 1060 pants under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”).
The classification of the Elektron 1060 pants is set forth in New York Ruling Letter (NY) L86558, dated August 24, 2005. This letter sets forth the classification of the Tank 1068 pants.
You provided a sample of the Tank 1068 pants with your ruling request letter. This office discussed the issues involved in the ruling request on these pants with Ms. Schmidt on September 16, 2005.
FACTS:
You describe the Tank 1068 pants in your ruling request letter as follows:
These motocross pants are of 100% man-made fabrics. The shell consists of polyester fabric with the exception of minor trim and decorative pieces. The inner lining of mesh is 100% polyester knit material, while the protective boot covering or gaiter is of woven polyester. The outer surface contains multiple sections or panels all of 100% polyester fabric coated in polyurethane for waterproofing and heat resistance. The pants contain zippered knees which can convert from a full length, over-the-boot pant to a shorter below-the-knee-pant. The sections located in the crotch and thigh are of polyester knit fabric that provides maximum flexibility. The same is true for a section of the polyester mesh material below the waistband which adds both flexibility and ventilation. Part of the waistband area contains a padded mesh insert that allows for ventilation.
While not specifically stated, we note that the majority of the outer surface panels of the shell are of woven construction.
In your ruling request letter, you also state that the polyurethane coating on the fabric of the outer surface is not visible to the naked eye. And, you assert that the Tank 1068 pants are classified in subheading 6211.33.0061, HTSUSA, which provides for: “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers, Other.”
ISSUE:
Whether the Tank 1068 pants are classified in heading 6211, HTSUSA, as an “other garment.”
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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, in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Heading 5903, HTSUSA, provides for: “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” A fabric is considered a fabric of heading 5903, HTSUSA, if its impregnation, coating or covering of plastics is visible to the naked eye as required by Note 2(a)(1) to Chapter 59, HTSUSA, with no account taken of any resulting change in color. It is CBP’s longstanding view that the wording of Note 2(a)(1), “visible to the naked eye,” is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered impregnated, coated or covered. The plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification. CBP believes this criterion is satisfied when the application of plastics material visibly affects the surface character of the fabric. In such an instance, the naked eye is seeing the plastics. See, e.g., HQ 082219, dated November 21, 1988, on the classification of three fabrics; HQ 085245, dated August 31, 1989, on the classification of a men's nylon coat made of certain coated fabrics; and HQ 087941, dated December 12, 1990, on the classification of certain fusible interlining fabrics from Japan.
In the case at hand, we disagree that the polyurethane coating on the fabric of the outer surface of the Tank 1068 is not visible to the naked eye. The outer shell fabric is coated on its inside with polyurethane coating. Applying the “visible to the naked eye” test on the submitted sample, using normally corrected vision in a well-lighted room, this coating was visibly distinguishable from that fabric without the use of magnification. The coating visibly affects the surface character of the fabric, obscuring the underlying weave and imparting a visible sheen. As a result, we find that the fabric has a plastic coating that is visible to the naked eye and, accordingly, is classifiable in heading 5903, HTSUSA.
Heading 6210, HTSUSA, provides for: “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907.” As the Tank 1068 pants are made up of fabric of heading 5903, HTSUSA, the pants are prima facie classifiable in heading 6210, HTSUSA. Note 5 to Chapter 62, HTSUSA, states: “Garments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210.” See generally, NY A82557, dated April 30, 1996; NY A84203 and NY A84302, dated June 19, 1996; NY A86116, dated August 21, 1996; and NY B80214, NY B80215, and NY B80493 dated December 29, 1996, all on the classification of motorcross pants.
In your ruling request letter, you assert that the Tank 1068 pants are classified in heading 6211, HTSUSA (as a special article of apparel used in sport). While we disagree, instead finding the pants to be prima facie classifiable in heading 6203, HTSUSA (as men’s trousers), and not heading 6211, HTSUSA, this difference is immaterial in this matter. The pants are prima facie classifiable in heading 6210, HTSUSA, and Note 5 to Chapter 62 directs classification under heading 6210, regardless of whether the pants may also be prima facie classifiable under heading 6211 or heading 6203, HTSUSA. See generally, HQ 950208, dated December 17, 1991, on the classification of certain jackets prima facie classifiable in heading 6202 and 6210, HTSUSA.
We note that the Tank 1068 pants do not incorporate any features of protective equipment for sports (such as guards, pads, or foam) and are, therefore, not prima facie classifiable under heading 9506, HTSUSA, as sports equipment.
HOLDING:
The Tank 1068 pants are classified in subheading 6210.40.5030, HTSUSA, which provides for: “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other men’s or boys’ garments: Other, Trousers, breeches and shorts.” The applicable column one, general duty rate under the 2005 HTSUSA is 7.1 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch