Classification of a men's alpinist climbing suit; garment constructed of a variety of fabrics; TD 91-78; Customs Memorandum 084118; classification as per GRI 3(b); subheading 6210.40.1040, HTSUSA.

HQ 953239 April 6, 1993 CLA-2 CO:R:C:T 953239 jb CATEGORY: Classification TARIFF NO.: 6210.40.1040 William J. Maloney, Esq. Rode & Qualey 295 Madison Avenue New York, NY 10017 RE: Classification of a men's alpinist climbing suit; garment constructed of a variety of fabrics; TD 91-78; Customs Memorandum 084118; classification as per GRI 3(b); subheading 6210.40.1040, HTSUSA. Dear Mr. Maloney: This is in response to your letter of December 3, 1992, on behalf of your client, Odyssey, USA, Inc., requesting classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for a men's alpine climbing suit constructed of different fabrics. A sample was submitted for examination and will be returned under separate cover. FACTS: The submitted sample, referred to as a men's alpine climbing suit, style number 3100, is a one-piece coverall designed for wear during mountain climbing. It has a front zipper opening extending from the crotch to the top of the collar (which has an elasticized drawstring), and which is partially covered by two flaps with VELCRO closures. The garment has a tunnelled belt at the waist, vertical opening zippered pockets above the waist, a horizontal opening zippered pocket in the rear, and elasticized storm cuffs at the ankles. The legs have various two way zippers to facilitate getting the garment on and off. The upper half of the garment is comprised, in part, of a knitted, heavily napped, polyester fleece fabric, extending from the shoulders to the mid-chest area, and also covering the internal portion of the collar. In addition, there is some woven nylon fabric (covering a predominantly greater surface area), comprising the external circumference of the collar and, the outer portion of the pockets extending from mid-chest to the waist. The garment also features some mesh for ventilation under both sleeves from the shoulder seams to the elbows. The lower half of the garment is constructed of a three- layer Gore-Tex fabric, which consists of a plastic membrane covered on the outer surface with a woven textile fabric and on the inner surface with a knitted textile fabric, both of man- made fibers. Data submitted comparing the Gore-Tex and non-Gore-Tex components of the garment indicates the following information regarding approximate surface area and cost per yard: Gore-Tex: Non-Gore-Tex: - 52.8 percent - 47.2 percent - $15.98 per yard - Nylon - $4.28 per yard - Fleece - $7.50 per yard Based on the data given, the figures suggest a value ratio of approximately 74 percent for Gore-Tex and 26 percent for the other fabrics. Though approximate weights of the different fabrics were not provided, a preliminary examination by our New York office indicates that the fleece weighs approximately 27 percent more than the Gore-Tex lamination per square foot. Overall, this results in a 19 percent weight advantage for the Gore-Tex over the fleece, based on the stated ratio of 52.8 percent of the surface for Gore-Tex and 34.6 percent for the fleece. ISSUE: Whether the subject garment is classifiable in heading 6210, HTSUSA, as an article made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907, or in heading 6211, HTSUSA, as men's or boys' woven other garment or, in heading 6114, HTSUSA, as a men's or boys' knit other garment? LAW AND ANALYSIS: Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance. Subheading Note 2 to Section XI HTSUSA, provides in pertinent part: (A) Products of Chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under Note 2 to this Section for the classification of a product of Chapters 50 to 55 consisting of the same textile materials. (B) For the application of this rule: (a) Where appropriate, only the part which determines the classification under Interpretative Rule 3 shall be taken into account. Note 2(A), Section XI, to which Subheading Note 2(A) refers, provides: Goods classifiable in Chapters 50 to 55 or in Heading No. 58.09 or 59.02 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 any other single textile material. Before the Subheading Note, which is predicated on the Section Note, can be utilized, it must first be determined to which of the fabrics comprising the article, the Section Note (and therefore the Subheading Note) applies. As was determined in HQ 950990, dated July 29, 1992, (regarding the classification of a reversible men's knitted pullover), when a garment is constructed of more than one material, any consideration of the headings that classify the article must first be predicated on a determination of which constituent material determines the classification of the merchandise. Usually apparel is classified under the HTSUSA according to its outer shell. Accordingly, goods of chapter 61 with relatively unimportant linings, shoulder pads, pockets, etc., would be classified according to Subheading Note 2(A), Section XI, without considering those trimmings. However, where those goods have parts or accessories that contribute materially to their character or usefulness (for example, heavy weight linings which provide a substantial degree of warmth to the wearer), then those parts or accessories must be considered along with the outer shell in determining the applicable classification. The classification of garments composed of different materials was discussed at length in Customs Memorandum file 084118, dated April 13, 1989. Therein factors for determining the essential character of garments were enumerated. For full body garments, those factors were as follows: In the case of full body garments, that component which comprises the visible upper portion will determine the classification; however, classification will be according to GRI 3(b) or 3(c), as appropriate, if the other component: (1) provides a significant visual effect (e.g., a substantial amount of lace); or (2) is over 60 percent by weight of the garment; or (3) is valued at more than 2 times the primary component. Thus, the analysis involves a determination of whether any one component from which the article is constructed, imparts the essential character to the garment. The competing provisions for this article are: heading 6210, HTSUSA, which provides for garments made up of fabrics of heading No. 5602, 5603, 5903, 5906 or 5907; heading 6211, HTSUSA, which provides for men's or boys' woven other garments; and heading 6214, HTSUSA, which provides for men's or boys' knit other garments. Based on the figures submitted with the article, the Gore- Tex portion is valued at more than two times the other components. As this is one of the requisite enumerated conditions which must precede a GRI 3 analysis (as per Customs Memo 084118, regarding the classification of garments composed of different materials), we are directed to proceed to GRI 3(b) or 3(c), as is appropriate. The Explanatory Notes to the Harmonized Commodity Description and Coding System, (EN), constitute the official interpretation of the tariff at the international level. GRI 3(b) provides: 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. Gore-Tex fabric is used in garments to protect against inclement weather, specifically providing wind resistance, waterproof protection, and to a degree, the transpiration of perspiration in the form of water vapor. The top portion of the garment is made of non-Gore-Tex fabrics. Specifically, it is constructed from fleece which has no wind or water resistance properties, but provides warmth to the wearer. In addition, the garment also features woven nylon and, mesh for the purpose of venting perspiration. Customs concluded in T.D. 91-78 that garments consisting of different fabrics should not be classified in Headings 6113 or 6210, HTSUS, unless one of the fabrics listed in those Headings is determined to impart the essential character to the garment in question. This is consistent with existing policy that a fabric imparts the essential character to a garment only when the fabric "creates its identity". See also, HQ 088720, dated June 25, 1991. In this case, only the lower half of the garment is made from Gore-Tex lamination. As a whole therefore, the garment will not keep one dry or protect one from the wind. On the other hand, the Gore-Tex, having no insulating properties, will do little to keep one warm other than give wind resistance. This garment is a composite good in the truest sense of the term-- each component performs a distinctly different function, which when combined, form a product which is neither distinctly Gore- Tex nor fleece. The EN to GRI 3(b) provide guidance in determining essential character: (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. It cannot be said that the fleece upper portion (provided for in heading 6114, HTSUSA), creates the "identity of the garment", nor can it be said that the identity of the garment is imparted by its woven components (provided for in heading 6211, HTSUSA). Based on the data submitted with the ruling request, the Gore-Tex portion of the garment exceeds all other components (fleece, woven and mesh), in value, quantity and, weight. As these factorss are explicitly mentioned as important considerations to a GRI 3(b) determination, it is Customs' position that this garment qualifies as a garment classifiable in heading 6210, HTSUSA. HOLDING: The submitted sample, a men's alpinist climbing suit, style number 3100, is classified in subheading 621O.40.1040, HTSUSA, which provides for other men's or boys' coveralls, made up of fabrics of headings 5602, 5603, 5903, 5906 or 5907. The applicable rate of duty is 7.6 percent ad valorem and the quota category is 659. 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, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), and issuance of the U.S. Customs Service which is updated weekly and is available at the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division