CLA-2 OT:RR:CTF:TCM H005538 ASM
Mr. Don Zarin, Esq.
Holland & Knight LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20006
RE: Classification of Protective Garments
Dear Mr. Zarin:
This is in response to your request of December 13, 2006, for a binding ruling made on behalf of your client, Remploy Limited (Remploy), regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain protective garments. Fabric samples of the articles were provided to Customs and Border Protection (CBP) and examined by this office. Although you originally requested confidential treatment, we have received the withdrawal of your request for confidentiality in correspondence dated May 11, 2007. You have also submitted additional samples of the garments in question, which were received on May 17, 2007. At your request, a meeting was held on October 19, 2007, and an additional written submission dated November 1, 2007, has been received.
FACTS:
This ruling request concerns the classification of Remploy’s protective garments, identified as the “Frontliner” product. The “Frontliner” product consists of three separate clothing layers identified as the “Cooler”, the “Britannia”, and the “Peeler”. According to Remploy, these three articles are permeable type garments which, together, comprise a tri-layer arrangement of protective materials that provide heat stress management and enhanced protection against chemical, liquid, vapor and biological spores. The “Frontliner” ensemble is also identified as having flame retardant capability and has been certified by the U.S. National Fire Protection Agency (NFPA). It is further noted that the “Frontliner” ensemble has been developed to protect against a range of chemical, biological, radioactive and nuclear materials (CBRN).
The “Frontliner” products can be accessorized with a mask, breathing apparatus, overboots, and inner and outer gloves. Each of these items are imported separately, or sourced from the U.S., and are packaged together by distributors in the U.S. into a kit for sale as one complete ensemble product. At this time, Remploy is only requesting a tariff classification ruling for the “Peeler” and the “Britannia” clothing layers. Further, it is noted that to qualify for National Fire Protection Association (NFPA) status, and provide the requisite protection, the clothing layers and accessories must be worn together as one ensemble product. However, in some instances, individual garment layers may be sold separately.
The “Peeler” is identified as the outer clothing layer of the tri-layer garment. It is comprised of a one-piece tunic over-coverall. The “Peeler” is constructed from a “tri-laminate” of 95 percent “meta aramid”, 5 percent “para-aramid” fibers, and an “ePTFE” membrane (PTFE is a plastic material). The fabric is made of a textile face fabric of woven construction laminated with plastic. The plastic lamination is not visible to the eye. There is also a 100 percent aramid knit backing fabric. The garment has a head to ankle configuration that provides “chem-bioprotection” and flame retardancy. The garment is also described as “moisture vapor permeable and waterproof”.
The “Britannia” is identified as an intermediate ensemble layer. It is described as a lightweight under-coverall which is worn over the “Cooler” base garment. It is a hooded, full body garment made from a unique lamination of polyester and absorptive carbon particles. The activated carbon particles are laminated to a knitted polyester backing fabric on both sides to give it strength. The lamination process is accomplished by spraying the activated carbon particles onto a carrier polyester knit structure and gluing another polyester knit layer on the top surface to hold the carbon particles in place. A “bio membrane”, which is a bio particulate filter made from polypropylene, is fitted as a drop liner into the garment. This article has butyl seals at the ankle, wrist, and facial plane to integrate closely with ancillary equipment.
On behalf of Remploy Limited, you have requested that the Frontliner “Peeler” be classified in subheadings 6210.40.5040, HTSUSA, (men’s), and 6210.50.5040, HTSUSA, (women’s), which provides at the four digit heading level for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907”. You have also suggested that the Frontliner “Britannia” be classified in subheading 6815.99.4000, HTSUSA, which provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: Other articles: Other: Other”.
ISSUE:
What is the proper classification of the merchandise under the HTSUSA?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized Tariff Schedule and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Frontliner “Peeler”
The “Peeler” is constructed from a “tri-laminate” of 95 percent “meta aramid”, 5 percent “para-aramid” fibers, and an “ePTFE” membrane (PTFE is a plastic material). The plastic lamination is not visible to the eye. There is also a 100 percent aramid backing fabric. The garment is also described as “moisture vapor permeable and waterproof”.
Heading 6210, HTSUSA, provides for: "Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907." Note 5 to Chapter 62, HTSUSA, is relevant to this analysis and states: "Garments which are, prima facie, classifiable both in heading 6210 and in other headings of [Chapter 62], excluding heading 6209, are to be classified in heading 6210."
To be classified in heading 6210, HTSUSA, it is necessary for a garment to be made up of a fabric classified in one of the headings enumerated in the legal text of heading 6210, HTSUSA. Note 2(a) to Chapter 59, HTSUSA, states that, subject to certain enumerated exceptions, heading 5903, HTSUSA, applies to "[t]extile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular)." Note 2(a)(1) to Chapter 59, HTSUSA, specifically excepts "[f]abrics in which the impregnation, coating or covering cannot be seen with the naked eye" from coverage of Note 2(a) and states, "for the purpose of this provision, no account should be taken of any resulting change of color."
The EN to heading 5903 states, in pertinent part, that: This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g., poly(vinyl chloride)).
Such products are classified here whatever their weight per m² and whatever the nature of the plastic component (compact or cellular), provided : (1) That, in the case of impregnated, coated or covered fabrics,
the impregnation, coating or covering can be seen with the
naked eye otherwise than by a resulting change in colour.
Textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye or can be seen only by reason of a resulting change in colour usually fall in Chapters 50 to 55, 58 or 60. Examples of such fabrics are those impregnated with substances designed solely to render them crease-proof, moth-proof, unshrinkable or waterproof (e.g., waterproof gabardines and poplins). Textile fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are also classified in Chapters 50 to 55, 58 or 60.
* * * * *
The laminated fabrics of this heading should not be confused with fabrics, which are simply assembled in layers by means of a plastic adhesive. These fabrics, which have no plastics showing in cross-section, generally fall in Chapters 50 to 55.
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 plastic material added to the fabric must be visibly distinguishable from the fabric without the use of magnification. No account should be taken of any resulting change in only shine, reflectivity, dullness or other property, which causes the viewer to see the effect rather than presence of plastic material. See generally Headquarters Ruling Letter (HQ) 957884, October 26, 2005, on the classification of certain pants with polyurethane coating; 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; HQ 087941, dated December 12, 1990, on the classification of certain fusible interlining fabrics from Japan; and HQ 084165, dated June 26, 1989, on the classification of certain fusible interlining fabrics.
When reviewing fabrics assembled in layers under Note 2(a)(1) to Chapter 59, HTSUSA, CBP examines the fabrics to ascertain whether the plastics layer is visible in the cross-section to the naked eye. See e.g., NY M82475, dated August 29, 2006, on the classification of a certain bonded fabric, and NY L80809, dated December 28, 2004, on the classification of men’s knit windblock garments. Additionally, CBP examines whether the plastics layer is visible through one of the assembled layers of fabric. In situations where one of the fabrics is of a loosely knitted or woven construction that allows the coating to be seen through that layer of fabric, CBP has considered such coating to be "visible to the naked eye." See e.g., NY L89462, dated January 13, 2006, and NY K87940, dated July 23, 2004, both in which CBP found plastic film to be visible through a knit layer.
Upon examination of the “Frontliner Peeler” fabric, we note that when viewed from the back of the fabric, the plastic membrane is visible to the naked eye. Thus, we have determined that the garment is made-up of a fabric of 5903, and that the men’s and women’s “Frontliner Peeler” garments are properly classified in heading 6210, which specifically provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, 5907”.
Frontliner “Britannia”
The men’s and women’s “Frontliner Britannia” is an intermediate layer coverall. The outer shell is constructed of knit polyester fabric, a middle layer of knit polyester fabric that has been glued to another knit polyester fabric that has been sprayed with the carbon particles. The carbon particles represent 17.5 percent of the weight of the garment. This outer shell is lined with what is referred to as a “bio-layer” constructed of non-woven polypropylene fabric. The coverall features a hood, rear zipper that extends to below the waist, and wrist and ankle seals.
You have asserted that the “Frontliner Britannia” should be classified in subheading 6815.99.4000, HTSUSA, which provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: Other articles: Other: Other”. In proposing this classification, you apply a GRI 3(b) analysis and conclude that the essential character is provided by the carbon particles. You have cited to Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT, February 9, 1996), Toy Biz, Inc. v. United States, 219 F. Supp. 2d 1289 (CIT, July 30, 2002), and HQ 967658, dated October 13, 2005, in support of your assertion that CBP should apply a GRI 3(b) analysis in classifying the “Britannia” garment. In the court cases of Better Home Plasters Corp. and Toy Biz, Inc., the Court of International trade applied a GRI 3(b) analysis in classifying the merchandise. In HQ 967658, CBP applied a GRI 3(b) analysis due to the fact that a contractor’s glove consisting of woven nylon fourchettes, knit nylon spandex on the palm with overlays of a coated knit material, a knit polyester and terry fabrics with a plastic overlay on the backside, was prima facie classifiable under two or more headings.
We recognize that due to the Britannia’s multiple layer construction consisting of polyester fabric, a non-woven polypropylene layer, and activated carbon particles. the subject article is prima facie classifiable in more than one heading. Heading 6114, HTSUSA, provides for “Other garments, knitted or crocheted”. Heading 6210, HTSUSA, provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907”. Heading 6815, HTSUSA, provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included”.
In view of the foregoing, we have found that this article cannot be classified solely on the basis of GRI 1. GRI 2(b) governs the classification of goods when there are mixtures and combinations of materials or substances, and when goods consist of two or more materials or substances. In relevant part, GRI 2(b) states that “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, as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. 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, even if one of them gives a more complete or precise description of the goods.
(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.
In this case, headings 6114, 6210, and 6815, HTSUSA, each refer to only part of the materials that make up this product. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b).
This garment is a “composite good” within the meaning of GRI 3(b) in that it consists of different materials. Thus, the article must be classified as if it consisted of the material or component that provides the essential character to the garment. In determining the essential character of this garment, the EN to GRI 3(b) provides the following guidance:
(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.
There have been several Court decisions on “essential character” for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 98-1227, CAFC, 171 F.3d 1370; 1999 U.S. App. LEXIS 4371.
The essential character of the subject merchandise can be determined by comparing each component as it relates to the use of the product. The total weight of the fabrics that make up the “Britannia” garment are provided as follows: “The knit polyester backing, both sides: 60% by weight of the garment; the carbon particles: 17.5% by weight of the garment; the non-woven polypropylene: 22.5% by weight of the garment”. In this instance, we note that the knit polyester fabric conveys the most substantial percentage of weight to the garment. Furthermore, without the knit polyester backing, the activated carbon particles would have no medium with which to form the middle layer of the garment. Such carbon particles cannot be engineered into a garment without having a medium with which to contain these brittle particles. Thus, it is the knit polyester fabric that renders the “Britannia” marketable and fully functional as a garment. As such, we find that the textile knit polyester fabric, which forms the exterior portion of the garment as well as the inner layer of the garment, conveys the essential character of this garment.
This determination is supported by HQ 967321, dated October 19, 2005, in which a three-layer fabric with activated-carbon particles embedded in one layer, identified as “ScentBlocker”® fabric, was classified as a textile knit fabric in subheading 6006.34.0040, HTSUSA. In HQ 967321, CBP applied a GRI 3(b) analysis and determined that the textile knit fabric provided the essential character to the fabric. CBP noted that while the knit fabric served as a “medium” for the carbon’s properties, the “ScentBlocker”® garments could not be constructed wholly of carbon fibers, as they would be too brittle and could not be constructed into a garment. It was further noted that the outer layer’s knit fabric was more substantial than any of the other layers and added to the marketability of the fabric. Accordingly, it was determined that the knit fabric provided the essential character and should be classified as if it consisted solely of the material in the outer layer, i.e., knitted polyester in heading 6006, HTSUSA. Although Note 1(q) to Section XI excludes, among other things, “carbon fibers or articles of carbon fibers of heading 6815”, CBP distinguished fabric containing activated carbon “particles” as not being excluded from Section XI because it is distinct from the carbon “fibers” mentioned in Note 1(q) to Section XI.
In your recent written submission dated November 1, 2007, you note that since the activated carbon particles used in the “Britannia” garment are not carbon fibers, it would still come within the “Other” provision of heading 6815, HTSUSA. We disagree. Aside from the fact that the EN to heading 6815 covers articles of stone or of other mineral substances, we do not find support in the EN’s that would provide for the classification of garments constructed of textile fabric sprayed with carbon “particles” as “Articles of stone or of other mineral substances” in heading 6815, HTSUSA. None of the exemplars set forth in the EN to heading 6815 are representative of such a garment. Rather, EN 6815 (1) – (10) specifically notes that the heading covers such things as non-electrical articles of natural or artificial graphite or carbons such as filters, discs, bearings, tubes, worked bricks and tiles, carbon fibers, articles made of peat, unfired bricks made of dolomite agglomerated with tar, bricks and other shapes chemically bonded but not yet fired, unfired silica or alumina vats (used for melting glass), touchstones for testing precious metal, paving blocks and slabs obtained by moulding fused slag without a binder, filter tubes of finely crushed and agglomerated quartz or flint, and blocks, slabs, sheets and other articles of fused basalt. We fail to see any similarities in these exemplars that might be comparable to a textile garment constructed with a knit polyester interior layer that has been sprayed with carbon particles.
In HQ 967320, dated October 19, 2005, CBP classified garments constructed of the “ScentBlocker”® fabric, i.e., men’s and boys’ three-layer garments having activated carbon linings, as men’s or boys’ shirts in subheading 6105.20.2010, HTSUSA, (tops) and as men’s or boys’ trousers in subheading 6103.43.1520, HTSUSA, (bottoms). In this ruling, CBP concluded that “Where the article is classified pursuant to the GRIs that precede GRI 3(b), the ‘essential character’ of the article is not determinative unless the term appears in legal notes relevant to the articles being classified”. Thus, CBP noted that since the garments were constructed of the “ScentBlocker”® textile fabric that had already been found to be classifiable in subheading 6006.34.0040, HTSUSA, garments constructed of such fabric would also be captured by headings in Section XI.
We disagree with your assertion that HQ 967320 and HQ 967321 are inapplicable to the classification of the “Britannia” garment. Although you note that the garment consists of polyester fabric that serves simply as the carrier structure that keeps the carbon particles together, CBP has already determined in
HQ 967321 that even where a textile knit fabric serves only as a “medium” for the carbon’s properties, the garments could not be constructed wholly of carbon fibers, as they would be too brittle and could not be constructed into a garment. Furthermore, the “ScentBlocker”® garments in HQ 967320 are substantially similar to the “Frontliner Britannia” garments and CBP has already held that garments constructed with an outer layer of textile and inner layer of activated carbon particles are classifiable as textiles within the provisions of Section XI, HTSUSA.
You have also asserted that disposability, intended use, and the additional polypropylene layer represent critical differences between the “Britannia” and “ScentBlocker”® garments. However, none of these elements have been found to convey the essential character to the “Britannia” garment within the meaning of a GRI 3(b) analysis under the HTSUSA. While we recognize that the “Britannia” is a highly specialized garment intended to provide the wearer with specific protections, it is still a garment that must be designed to cover the human form. In that regard, we have found that the textile knit polyester fabric conveys the essential character within the meaning of GRI 3(b) by providing the greatest substance, functionality, and marketability to the garment. As such, we find that the “Britannia” garment is properly classified in heading 6114, HTSUSA, as an “Other” knit garment, pursuant to a GRI 3(b) analysis.
HOLDING:
The subject merchandise, identified as the men’s “Frontline Peeler”, is correctly classified in subheading 6210.40.5040, HTSUSA, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other men’s or boys’ garments: Of man-made fibers: Other, Overalls and coveralls”. The general column one duty rate is 7.1 percent ad valorem. The textile category is 659.
The subject merchandise, identified as the women’s “Frontline Peeler”, is correctly classified in subheading 6210.50.5040, HTSUSA, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women’s or girls’ garments: Of man-made fibers: Other, Overalls and coveralls”. The general column one duty rate is 7.1 percent ad valorem. The textile category is 659.
The subject merchandise, identified as the men’s “Frontliner Britannia”, is correctly classified in subheading 6114.30.3044, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Other, Coveralls, jumpsuits and similar apparel: Men’s or boys’: Other”. The general column one duty rate is 14.9 percent ad valorem. The textile category is 659.
The subject merchandise, identified as the women’s “Frontliner Britannia”, is correctly classified in subheading 6114.30.3054, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Other, Coveralls, jumpsuits and similar apparel: Women’s or girls’: Other”. The general column one duty rate is 14.9 percent ad valorem. The textile category is 659.
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. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.
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 the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch