CLA-2 CO:R:C:T 952934 NLP
6211.33.0010
Mr. Joseph A. Amato
Maxwell Safety Products LTD.
20 Gilbert Avenue- Suite 101
Hauppauge, NY 11788
RE: Composite fabric made up of polyester, cotton and stainless
steel fibers; coveralls; Legal Note 2(A) and 2(B) to Section
XI; headings 5211, 5514, 6114 and 6211; Explanatory Notes to
headings 5605, 6114, 6211 and Chapter 62; GRI 3(b);
Explanatory Note (VIII) to GRI 3(b); essential character
Dear Mr. Amato:
This is in response to your letter dated October 27, 1992,
in which you requested the tariff classification of a protective
garment and the composite fabric used to manufacture this garment
under the Harmonized Tariff Schedule of the United States
(HTSUS). You submitted a sample of the fabric for our
examination.
FACTS:
We submitted the sample of the fabric to the Customs
laboratory for analysis. The laboratory analysis found that the
sample is a 2 x 1 three-thread left hand twill woven fabric. It
is composed of 47% staple polyester, 45% cotton and 8% stainless
steel fibers. The fabric contains 21.2 single yarns per
centimeter in the warp and 18.9 single yarns per centimeter in
the filling. This material has been dyed a uniform color.
In addition, you also informed us that the materials are broken
down by value as follows: approximately 80% stainless steel
fibers, 10% polyester and 10% cotton.
In a telephone conversation with our New York office, you
stated that the fabric is constructed of specialized yarns
designated in the trade as "Naptex" yarns. These yarns are
characterized by a central core of polyester staple fibers mixed
with micro fiber stainless steel surrounded by cotton fiber.
This fabric will be used to manufacture garments that
provide protection from microwave radiation. These garments are
full coveralls with long sleeves and a full front zipper closure.
They will be worn in a variety of settings, for example, they
will be worn by people who climb radio towers and by those who
work in laboratories. You will be importing the raw material for
the coveralls in bolts 100 meters by 1.5 meters and the finished
coveralls themselves.
ISSUE:
What is the tariff classification of the subject woven
fabric?
What is the tariff classification of the coveralls?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings 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's may be applied, taken in
order.
ISSUE #1
The first issue we need to address in determining the
classification of the fabric is whether the stainless steel fiber
that constitutes 8% of the weight of the fabric is considered a
textile material for classification purposes. Legal Note 2(B)(a)
to Section XI, HTSUS, confers on metal in certain forms the
status of a textile material when used in the manufacture of
woven fabric. Legal Note 2(A) and 2(B)(a) to Section XI state
the following, in pertinent part:
(A) Goods classifiable in chapters 50 to 55 or in heading
5809 or 5902 and of a mixture of two or more textile
materials are to be classified as if consisting wholly
of that one textile material which predominates by
weight over each other single textile material.
(B) For the purposes of the above rule:
(a) Gimped horsehair yarn (heading 5110) and metalized
yarn (heading 5605) are to be treated as a single
textile material the weight of which is to be
taken as the aggregate of the weights of its
components; for the classification of woven
fabrics, metal thread is to be regarded as a
textile material;
Therefore, we have to determine whether the metal fiber
incorporated into this fabric can be characterized as "metalized
yarns" or "metal thread."
In understanding the language of the HTS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be utilized. The ENs, although not legally binding, comprise
the official interpretation of the Harmonized System at the
international level. The ENs to heading 5605 state, on page 777,
in pertinent part:
This heading covers:
(1) Yarn consisting of any textile material (including
monofilament, strip and the like and paper yarn)
combined with metal thread or strip, whether obtained
by a process of twisting, cabling or by gimping,
whatever the proportion of metal present....
(2) Yarn of any textile material (including monofilament,
strip and the like, and paper yarn) covered with metal
by any process. This category includes yarn covered
with metal by electro-deposition, or by giving it a
coating of adhesive (e.g., gelatin) and then sprinkling
it with metal powder (e.g., aluminum or bronze).
The ENs further state that this heading includes products
consisting of a core of metal foil or plastic film coated with
metal dust sandwiched between two layers of plastic.
It is our position that the stainless steel fibers that are
combined with the textile fibers to compose this fabric are not
considered "metalized yarns" classifiable in heading 5605, HTSUS.
This fabric does not consist of yarns combined with metal thread
or strip, nor is it a yarn covered with metal by any process.
Moreover, the core of the fabric is not metal foil and there is
no plastic present.
Furthermore, the metal fibers in this fabric are not
classifiable as "metal thread". They are short fibers that do
not form a continuous strand and they would not be within the
common and commercial meaning of metal thread. Thus, it is our
opinion that the metal fibers in the fabric are neither
"metalized yarn" classifiable in heading 5605, HTSUS, nor are
they classifiable as "metal thread". Therefore, the stainless
steel fibers are not considered to be a textile material for
purposes of classifying this fabric.
The subject fabric is a composite good as it is composed of
textile materials and metal fibers. GRI 2 addresses
classification of composite goods and states the following, in
pertinent part:
(b) ... Any reference to goods of a given material or
substance shall be taken to include a reference to
goods consisting wholly or partly of such material or
substance. The classification of goods consisting of
more than one material or substance shall be according
to the principles of rule 3.
GRI 3 states, in pertinent part, the following:
When, by application of rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two or
more headings, classification shall be effected as follows:
(b) Mixtures, 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 classified as if they consisted of the
material or component which gives them their
essential character, insofar as this criterion is
applicable.
EN VIII to GRI 3(b), page 4, states that:
(VIII) The factor which determines essential
character will vary as between different kinds
of goods. It may, for example, be determined
by the nature of the material or component, its
bulk, quantity, weight or value, or by the
role of a constituent material in relation to
the use of the goods.
In the instant case, the textile fiber portions of the
fabric constitute the largest proportion of the fabric's weight
and bulk. In fact, each type of textile fiber provides almost
half of the fabric's weight and bulk. Together, their weight
predominates by 92%. Moreover, while the metal fibers act to
absorb the microwave radiation, it is the textile portions which
provide the medium for these fibers and allow the fabric to be
manufactured into a garment. Once a garment, the textile fibers
provide the comfort required of the wearing apparel. Thus,
though the stainless steel fibers do have a higher value, it is
our position based on their weight, bulk and the role they play,
it is the textile portions of the material which represent the
essential character of this fabric.
Pursuant to Legal Note 2(A) to Section XI, this fabric is
classified in subheading 5514.22.0020, HTSUS, which provides for
"[w]oven fabrics of synthetic staple fibers, containing less than
85 percent by weight of such fibers, mixed mainly or solely with
cotton, of a weight exceeding 170 g/m squared: [d]yed: 3-thread
or 4-thread twill, including cross twill, of polyester staple
fibers: [n]ot napped."
In a telephone conversation with our New York office you
stated that you intend to alter the fiber content of this fabric
to consist of 50% cotton, 42% staple polyester and
8% stainless steel fiber. This fabric will be classifiable in
subheading 5211.32.0020, HTSUS, which provides for "[w]oven
fabrics of cotton, containing less than 85 percent by weight of
cotton, mixed mainly or solely with man-made fibers, weighing
more than 200 g/m squared: [d]yed: 3-thread or 4-thread twill,
including cross twill: [n]ot napped."
ISSUE #2
Chapter 62, HTSUS, provides for "[a]rticles of apparel and
clothing accessories, not knitted or crocheted." The ENs to
Chapter 62 state, on page 848, that "[t]his Chapter covers men's,
women's or children's articles of apparel, clothing accessories
and parts of apparel or of clothing accessories, made up of the
fabrics (excluding wadding but including felt or nonwovens) of
Chapters 50 to 56, 58 and 59."
Heading 6211, HTSUS, provides for "[t]rack suits, ski suits
and swimwear; other garments." The ENs to heading 6211 state,
on page 856, that the provisions of the EN to heading 61.14
concerning other garments apply, mutatis mutandis to articles of
this heading. The ENs to heading 6114 state, on page 842, that
the heading includes, inter alia, boiler suits (coveralls),
smocks and other protective clothing of a kind worn by mechanics,
factory workers, surgeons, etc....
As the core material which comprises the garment is
classified in either Chapter 52 or 55, HTSUS, and the subject
garment is described by the above ENs to heading 6114, this
garment is classifiable in heading 6211, HTSUS. If the garment
is made of the first type of fabric it is classifiable in
subheading 6211.33.0010, HTSUS, which provides for "[t]rack
suits, ski-suits and swimwear; other garments: [o]ther garments,
men's or boys': of man-made fibers: [c]overalls...: [o]ther:
[m]en's." If the garment is manufactured from the second type of
material, it will be classifiable in subheading 6211.32.0010,
HTSUS, which provides for " [t]rack suits, ski-suits and
swimwear; other garments: [o]ther garments, men's or boys': [o]f
cotton: [c]overalls...: [o]ther: [m]en's."
HOLDING:
The fabric comprised of 47% staple polyester, 45% cotton and
8% stainless steel is classifiable in subheading 5514.22.0020,
HTSUS, which provides for "[w]oven fabrics of synthetic staple
fibers, containing less than 85 percent by weight of such fibers,
mixed mainly or solely with cotton, of a weight exceeding 170g/m
squared: [d]yed: 3-thread or 4-thread twill, including cross
twill, of polyester staple fibers: [n]ot napped." The rate of
duty is 17% ad valorem and the applicable textile category code
is 617. A coverall made out of this fabric would be classifiable
in subheading 6211.33.0010, HTSUS, which provides for "[t]rack
suits, ski-suits and swimwear; other garments: [o]ther garments,
men's or boys': of man-made fibers: [c]overalls...: [o]ther:
[m]en's." The rate of duty is 17% ad valorem and the applicable
textile category code is 659.
The second fabric material, which will be composed of 50%
cotton, 42% staple polyester and 8% stainless steel fibers, is
classifiable in subheading 5211.32.0020, HTSUS, which provides
for "[w]oven fabrics of cotton, containing less than 85 percent
by weight of cotton, mixed mainly or solely with man-made fibers,
weighing more than 200 g/m squared: [d]yed: 3-thread or 4-thread
twill, including cross twill: [n]ot napped." The rate of duty is
9.7% ad valorem and the applicable textile category code is 317.
Provided the coverall is made out of this material, it would be
classifiable in subheading 6211.32.0010, HTSUS, which provides
for " [t]rack suits, ski-suits and swimwear; other garments:
[o]ther garments, men's or boys': [o]f cotton: [c]overalls...:
[o]ther: [m]en's." The rate of duty is 8.6% ad valorem and the
applicable textile category is 359.
The designated textile and apparel categories may be
subdivided into parts. If so, the 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 the importer 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.
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,
John Durant, Director
Commercial Rulings Division