HQ 087526: Survival and foul weather garments. Gore-Tex; Antonio Pompeo; protection; decency; adornment; other made up articles

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                  HQ 087526

                               April 24, 1992

CLA-2 CO:R:C:T  087526 HP

CATEGORY:  Classification

TARIFF NO.:   6113.00.0070; 6210.50.1040; 6211.43.0007

Mr. Mark Neville, Esq.
51 Marion Road
Westport, CN 06880

RE:  Survival and foul weather garments.  Gore-Tex; Antonio Pompeo; protection
; decency; adornment; other made up articles

Dear Mr. Neville:

     This is in reply to your letter of June 12, 1990.  That letter concerned
the tariff classification, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), of survival and foul weather garments, produced in
Canada.

FACTS:

     The merchandise at issue consists of five separate articles, described by
 you as follows:

Model No.

Description
MAC-10
Aviation Anti-Exposure CoverallMAC-5
Aviation Anti-Exposure CoverallsIS-2
Immersion/Survival SuitMP4300
Bib Pants (mens)MP4700
Bib Pants (mens)
               As you can see from the above, there are three
          separate types of articles.  The aviation anti-exposure
          coveralls, MAC-10 and MAC-5, are described in the brochure
          styled "MAC Mustang Aviation Coveralls," [:as

               [a] one-piece coverall having an outer layer of
               [woven Nomex permeable fabric, a middle layer of
                impermeable [PVC] foam and an inner layer of
               permeable fabric.  No attached feet, gloves or
               hood.  No permanent seal at wrists or ankles or
               neck.

                                    * * *

               The Immersion/Survival Suit, IS-2, is a survival suit
           system designed to be worn against the specific hazards
          of immersion in the water and risks of hypothermia and
          drowning. The unit is constructed from neoprene rubber
          sheets to which knit nylon fabric has been laminated on
          both sides.  The sheets are cut, shaped and assembled
          together with heavy duty waterproof/gasproof zippers,
          snaps, velcro attachments, hooks, rings, webbing and an
          inflation valve.

               The suit is depicted at p. 12 of the Mustang catalog,
          in which a description of the anti-hypothermic protection
          of Mustang is contained at p. 3.

               You will also note that the IS-2 meets U.S. Coast
          Guard approval: 160.071/16/0.

               The men's bib pants, MP-4300 and MP-4700, are foul
          weather pants which provide excellent wind and rain
          protection but are not insulated and are not buoyant.
          They are depicted at pp. 6 and 11 of the catalog.

               The MP-4300, is constructed with a red nylon labrador
           twill fabric, which is tapeable and has been coated on
          the back with polyurethane, and the outer shell of which
          has been treated with a water repellant spray.  The inner
          lining is uncoated black nylon.  The MP-4700 bib overalls
          are constructed from an outer shell of dermo flex nylon
          tapeable, which has been sprayed for water resistance[,]
          and an inner lining of uncoated black nylon.

     In HRL 078486 of January 21, 1987, the aviation coveralls were classified
 under item number 389.6270, Tariff Schedules of the United States (TSUS), as
other articles of man-made fiber.  In Internal Advice 074939 of June 20, 1985,
 the immersion suit was classified under item number 386.13, TSUS, as articles
of textile materials, not specifically provided for.

ISSUE:

     Whether the articles are considered wearing apparel under the HTSUSA?

LAW AND ANALYSIS:

MAC-5 & MAC-10 Coveralls

     Heading 6211, HTSUSA, provides for, inter alia, other garments, including
 coveralls.  The Explanatory Notes (EN) to the HTSUSA constitute the official
interpretation of the tariff at the international level.  While not legally
binding, they do represent the considered views of classification experts of
the Harmonized System Committee.  It has therefore been the practice of the
Customs Service to follow, whenever possible, the terms of the Explanatory
Notes when interpreting the HTSUSA.  The EN to heading 6114, HTSUSA, which
applies, mutatis mutandis, to articles of this heading, states:

               This heading covers ... garments which are not
          included more specifically in the preceding headings of
          this chapter.

               The heading includes, inter alia:

          (1)  Aprons, boiler suits (coveralls), smocks and other
               protective clothing of a kind worn by mechanics,
               factory workers, surgeons, etc.

                                    * * *

          (4)  Specialized clothing for airmen, etc. (e.g., airmen's
                electrically heated clothing).  [Emphasis added.]

     You contend that classification of the MACs under this provision would be
 incorrect, based upon "the fact that these garments are not wearing apparel
since they are not meant to provide decency, comfort or adornment...."  See
Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D. 2006 (Jun. 17, 1958) (
TSUS) (the term wearing apparel includes articles worn for decency, comfort or
adornment, but not for protection against sports or work place hazards).  See
also  HRL 078486, supra, (TSUS) (relying upon Antonio Pompeo).

     Resulting from the enactment of the Omnibus Trade and Competitiveness Act
of 1988,  Pub. L. No. 100-418, 102 Stat. 1107 (1988), the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) became our tariff code,
effective January 1, 1989.  Customs is mandated by law to classify merchandise
according to the terms of this schedule, aided by various explanatory
materials.  It is clear from the above-cited Explanatory Notes that it was the
intention of the drafters of the Harmonized System to incorporate within the "
other garments" provision a broader range of articles.  The above-emphasized
items are all protective apparel considered garments.  We feel, therefore,
that classification of the MACs under heading 6211, HTSUSA, is correct.

IS-2 Suit

     Heading 6113, HTSUSA, provides for, inter alia, garments made up of
fabrics of heading 5906 (rubberized textile fabrics).  The EN to heading 5906
states:

               This heading covers:
                                    * * *

          (D)  Plates, sheets or strip of cellular rubber combined
               with textile fabric, in which the textile fabric is
               more than mere reinforcement.  (As regards the
               criteria for distinguishing between these products
               and similar products of heading 40.08, see item (A)
               of Explanatory Note to heading 40.08.)


The EN to heading 4008, HTSUSA, states that "...cellular rubber combined with
textile fabric on both faces, whatever the nature of the fabric, are excluded
from this heading (heading 56.02, 56.03 or 59.06)."  Since the rubber sheets
are combined on both sides with textile, it is clear that the IS-2 is made up
of fabrics of heading 5906, HTSUSA.

     You have again argued, at six, "that these survival articles are not
wearing apparel but are, instead, other made-up textile articles[ of heading
6307, HTSUSA]."  In response, we repeat our analysis from the preceding
segment, noting with approval the EN to heading 6113:

               ... this heading covers all garments made up of ...
          fabrics of heading 59.03, 59.06 or 59.07, without
          distinction between male or female wear.

               The heading includes raincoats, oilskins, divers'
          suits and anti-radiation protective suits, not combined
          with breathing apparatus.

Classification of the IS-2 in heading 6113, HTSUSA, is therefore appropriate.

MP-4300 and MP-4700

     Heading 6210, HTSUSA, provides for, inter alia, garments made up of
fabrics of heading 5903.  Heading 5903, HTSUSA, provides for classification of
textile fabrics impregnated, coated, covered or laminated with plastics, other
than tire cord covered by Heading 5902.  Note 2 of Chapter 59, HTSUSA,
provides, in pertinent part:

          Heading No. 59.03 applies to:

               (a) Textile fabrics, impregnated, coated, covered or
          laminated with plastics, ... other than:


               (1) Fabrics in which the impregnation, coating or
               covering cannot be seen with the naked eye (usually
               Chapters 50 to 55, 58 or 60); for the purpose of this
                provision, no account should be taken of any
               resulting change of colour; * * *

     The wording of Note 2(a)(1) (cannot be seen with 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, covered or laminated.  The plastics material
added to the fabric must be visibly indistinguishable from that fabric without
the use of magnification.  Any change in the feel of the material is not taken
into account.  In essence, the plastics coating must alter the visual
characteristic of the fabric in order for the fabric to be considered coated
with plastics.

     Applying the statutory test to the submitted samples, using normally
corrected vision in a well lighted room, the fabric composing the outer shell
of the bib pants is clearly visibly coated.  The warp and weft design is
almost completely obscured by the PU coating; therefore, the bib pants are
classifiable in heading 6210, HTSUSA.

HOLDING:

     As a result of the foregoing, the instant merchandise is classifiable as
follows:

MAC-10 and MAC-5

     ... under subheading 6211.43.0007, HTSUSA, textile category 659, as track
      suits, ski-suits and swimwear; other garments, other garments, women's
     or girls', of man-made fibers, coveralls, jumpsuits and similar apparel,
     other, insulated for cold weather protection.  Articles which meet the
     definition of goods originating in the territory of Canada (see General
     Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the
     United States-Canada Free Trade Agreement Implementation Act of 1988.  If
     the merchandise constitutes goods originating in the territory of Canada,
     the applicable rate of duty is 10.2 percent ad valorem; otherwise, the
     general rate of duty is 17 percent ad valorem.

IS-2

     ... under subheading 6113.00.0070, HTSUSA, textile category 659, as
     garments, made up of knitted or crocheted fabrics of heading 5903, 5906
     or 5907, other, overalls and coveralls, other, women's or girls'.
     Articles which meet the definition of goods originating in the territory
     of Canada (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced
     rates of duty under the United States-Canada Free Trade Agreement
     Implementation Act of 1988.  If the merchandise constitutes goods
     originating in the territory of Canada, the applicable rate of duty is 4.
     5 percent ad valorem; otherwise, the general rate of duty is 7.6 percent
     ad valorem.

MP-4300 and MP-4700

     ... under subheading 6210.50.1040, HTSUSA, textile category 659, as
     garments, made up of fabrics of heading 5602, 5603, 5906 or 5907, other
     women's or girls' garments, of man-made fibers, other, overalls and
     coveralls.  Articles which meet the definition of goods originating in
     the territory of Canada (see General Note 3(c)(vii)(B), HTSUSA) are
     subject to reduced rates of duty under the United States-Canada Free
     Trade Agreement Implementation Act of 1988.  If the merchandise
     constitutes goods originating in the territory of Canada, the applicable
     rate of duty is 4.5 percent ad valorem; otherwise, the general rate of
     duty is 7.6 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 negotiations 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 issuance of the U.S. Customs Service, which is updated weekly and
is available 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 status of any import restraints or
requirements.

     A copy of this ruling letter should be attached to the entry documents
filed at the time this merchandise is imported.  If the documents have been
filed without a copy, this ruling should be brought to  the attention of the
Customs officer handling the transaction.

                                 Sincerely,



                            John Durant, Director
                         Commercial Rulings Division