The tariff classification and status under the North American Free Trade Agreement (NAFTA), of dry suits from Canada; Article 509

N068477 August 6, 2009 CLA-2-61:OT:RR:NC:TA:348 CATEGORY: Classification TARIFF NO.: 6211.33.0010; 6210.40.5020 Mr. Craig Fisher Mustang Survival Corp. 3810 Jacombs Road British Columbia Canada V6V 1Y6 RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of dry suits from Canada; Article 509 Dear Mr. Fisher: In your letter dated, June 30, 2009, you requested a ruling on the status of dry suits from Canada under the NAFTA. The samples are being returned to you as requested. The submitted samples, Styles MSD575 Water Rescue Dry Suit and MSD577vSR Tactical Operations Dry Suit, are unisex coverall garments designed for over-water and waterborne tactical operation teams. The one-piece garments have long sleeves and legs with attached waterproof boots. Style MSD575 features a double collar consisting of an inner stand up neoprene collar with a draw cord and cord locks and an outer neoprene collar, long sleeves with hook and loop closures at the wrist and a neoprene inner cuff, shoulder patches, padded elbow patches, an interior suspender system with buckles, an interior chest patch, a diagonal zipper across the chest with a covering patch for the zipper pull, a horizontal zipper below the waist with a covering patch for the zipper pull, abrasion fabric on the seat, forearms, the sleeve and ankle cuffs and the major portion of each leg, padded shins, ankle zippers, elasticized cuffs with hook and loop closures and attached boots. Style MSD577vSR features a stand up neoprene collar with a draw cord and cord locks, neoprene shoulder gussets, long sleeves with a hook and loop closure at the wrist and a neoprene inner cuff, reflective bands on each sleeve near the cuff, padded elbow patches, an interior draw cord and cord lock at the waist, an interior suspender system with buckles, a diagonal zipper across the chest, a horizontal zipper below the waist, an interior coccyx pad, a lining on the lower body and legs, a neoprene mid-section, a web belt with a plastic buckle closure at the waist, wide belt loops, abrasion fabric on the hip and seat, adjustable thigh straps, padded overlays at the knees, ankle zippers, elasticized cuffs with hook and loop closures and attached boots. For Style MSD575, you state that the body and boots are constructed of a laminated fabric consisting of a top layer of 100% nylon woven fabric, a middle layer of expanded polytetrafluoroethylene (ePTFE) and a bottom layer of 100% polyester knit fabric. The collars and inner cuffs are constructed of laminated fabric consisting of a top layer of neoprene, a middle layer of adhesive and bottom layer of nylon knit fabric. Both fabrics contain an inner layer of cellular plastic that is visible in cross section and considered a laminated fabric. The fabric for the body and boots would be classified in heading 5903, Harmonized Tariff Schedule of the United States (HTSUS) and the fabric for the collars and cuffs would be classified in heading 5906, HTSUS. The patches for the shoulders, the elbows and over the zipper pulls are constructed of nylon fabric that has been coated with polyurethane. Although the nylon woven fabric is coated with polyurethane, the coating can not be seen with the naked eye. The abrasion fabric for the seat, forearms, sleeve and leg cuffs and the major lower portion of the legs is composed of polyamid/Kevlar/elasthane woven fabric. The laminated fabrics of headings 5903 and 5906, HTSUS, comprise over 60% of the visible surface area of the garment and impart the essential character to the garment. For Style MSD577vSR, you state the upper body portion, boots and lining are composed of a laminated fabric consisting of a top layer of 100% nylon woven fabric, a middle layer of expanded ePTFE and a bottom layer of 100% polyester knit fabric and should be classified in heading 5903. We have examined the fabric and have determined that it is a laminated fabric; however, the plastic is not visible to the naked eye in cross section. Note 2 to Chapter 59, HTSUS, defines the scope of heading 5903, under which textile fabrics which are coated, covered, impregnated, or laminated with plastics are classifiable. In addition, it provides guidance on the classification of combinations of textile and plastics. Note 2 states in part that heading 5903, HTSUS, applies to: (a) Textile 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), other than: 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 purposes of this provision, no account should be taken of any resulting change in color; The Explanatory Notes (EN) to the HTSUS constitutes the official interpretation of the tariff at the international level. The EN to this heading includes therein: 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. Since the plastic is not visible to the naked eye, the fabric is not considered a laminated fabric for the purposes of classification in heading 5903, HTSUS. With regard to the collars, gussets, inner cuffs and mid-section for Style MSD577vSR, we find that they are constructed of laminated fabric consisting of a top layer of neoprene, a middle layer of adhesive and bottom layer of nylon knit fabric. This fabric contains an inner layer of cellular plastic that is visible in cross section; it is considered a laminated fabric of heading 5903, HTSUS. The abrasion fabric for the belt loops, hips, seat, knees and lower portion of the legs and arms is composed of nylon/Kevlar/PET/PU woven fabric. The forearm and back of the sleeves and the lower body are constructed of nylon/spandex knit fabric. The manmade woven fabric comprises over 60% of the visible surface area of the garment and imparts the essential character to the garment. You have described these garments as "unisex". Unisex garments are classified based on the requirements of Chapter 62, note 8, which states: Garments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments. Since the dry suits cannot be identified as either men’s or women’s garments, they are classified as women’s garments under heading 6210 and 6211, HTSUS. The applicable subheading for Style MSD575 will be 6210.50.5040, HTSUS, which provides for garments, made up of fabric of heading 5602, 5603, 5903, 5906 or 5907, other women’s or girls’ garments: of man-made fibers, other, overalls and coveralls.  The rate of duty will be 14.9 percent ad valorem. The applicable subheading for Style MSD577vSR will be 6211.43.0010, HTSUS, which provides for track suits, ski-suits and swimwear, other garments: other garments, women’s or girls’: of man-made fibers, coveralls, jumpsuits and similar apparel: other: women’s. The duty rate will be 16 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. The manufacturing operations are as follows: Style MSD575 The nylon/ePTFE/polyester laminated fabric is manufactured in the U.S. from originating materials. The neoprene/nylon laminated fabric is manufactured in Taiwan. The nylon woven fabric is manufactured in Taiwan. The polyamid/Kevlar/elasthane woven fabric is manufactured in Switzerland. The internal foam shin and elbow padding is manufactured in Taiwan. The fabric is cut, sewn and assembled into the finished garment in Canada. The garment is exported directly from Canada to the U.S. Style MSD577vSR The nylon/ePTFE/polyester woven fabric is manufactured in the U.S. from originating materials. The neoprene/nylon laminated fabric is manufactured in the U.S. from originating materials. The nylon/Kevlar/PET/PU woven fabric is manufactured in Taiwan. The nylon/spandex knit fabric is manufactured in the U.S. from originating materials. The internal foam elbow padding is manufactured in Taiwan. The fabric is cut, sewn and assembled into the finished garment in Canada. The garment is exported directly from Canada to the U.S. General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a NAFTA party” only if-- (i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or (ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that-- (A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or (B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or (iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or (iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the nonoriginating materials falling under provisions for “parts” and used in the production of such goods does not undergo a change in tariff classification because-- (A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or (B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts, provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note. Chapter 62, Chapter rule 3 states in pertinent part:For purposes of determining whether a good of this chapter is originating, the rule applicable to that good shall only apply to the component that determines the tariff classification of the good and such component must satisfy the tariff change requirements set out in the rule for that good. The component that determines the classification for Style MSD575 is the laminated fabric. The non-originating material is the neoprene/nylon laminated fabric that is classified in heading 5906, HTSUS. For Style MSD575, classified in subheading 6210, GN 12/62.32C requires: A change to subheadings 6208 through 6210 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516, 5801 through 5802 or 6001 through 6006, provided that the good is both sewn or otherwise assembled in the territory of one or more of the NAFTA parties. The neoprene/nylon laminated fabric does meet the terms of the tariff shift rule. The good will be both sewn and assembled in Canada. For Style MSD577vSR, the component that determines the classification is the manmade woven fabric. The non-originating material is the nylon/Kevlar/PET/PU woven fabric. The applicable tariff heading for this fabric is 5407, HTSUS. For Style MSD577vSR, classified in subheading 6211.43, GN 12/62.35 requires: A change to subheadings 6211.31 through 6211.49 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516, 5801 through 5802 or 6001 through 6006, provided that the good is both sewn or otherwise assembled in the territory of one or more of the NAFTA parties. The nylon/Kevlar/PET/PU woven fabric does not meet the terms of the tariff shift rule. Based on the facts provided, Style MSD575 qualifies for NAFTA preferential treatment because it meets the requirements of HTSUS General Note 12(b)(ii)(A). The merchandise will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. Based on the facts provided, Style MSD577vSR does not qualify for NAFTA preferential treatment because it does not meet the requirements of HTSUS General Note 12(b)(ii)(A). The merchandise will therefore not be entitled to a free rate of duty under the NAFTA. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Rosemarie Hayward at (646) 733-3064. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division