CLA-2 CO:R:C:T 088373jlj
Mr. Jay Shynn
Kotap America Ltd.
10 Bayview Avenue
Lawrence, New York 11559
RE: Modification of New York Ruling Letter (NYRL) 848018;
classification of warning vest
Dear Mr. Shynn:
On December 21, 1989, U. S. Customs, New York Seaport,
issued a ruling to you (NYRL 848018) classifying a warning vest
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). We have reconsidered this ruling at the
request of our New York office and have determined that the
classification stated therein was in error.
FACTS:
The item at issue is a warning vest produced in South Korea
and used by construction workers. It is made of mesh, PVC
dipped, polyester base fabric, and is fluorescent orange in color
and is flame retardant. The reflector on the chest and back is
PVC. The binding around the neck, arm holes and bordering the
entire vest is vinyl. At the side bottom of the vest on each
side is an elastic adjustable band. The closure at the back of
the vest is made of a velcro-like material.
In NYRL 848018, the warning vest was classified under the
provision for garments, made up of fabrics of Heading 5602, 5603,
5906 or 5907: other women's or girls' garments: of man-made
fibers: having an outer surface impregnated, coated, covered or
laminated with rubber or plastics material which completely
obscures the underlying fabric, in subheading 6210.50.1010,
HTSUSA.
ISSUE:
What is the correct tariff classification of this item?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relevant section
or chapter notes.
The instant fluorescent orange vest is not designed to be
worn as apparel, but as a warning signal worn over clothing by
construction workers to catch the attention of motorists who are
approaching construction areas.
In Antonio Pompeo v. United States, 40 Cust. Ct. 362,
C.D.2006 (1958), the Customs Court held that the common meaning
of the term "wearing apparel" includes articles worn by human
beings for reasons of decency, comfort or adornment, but does not
include articles worn as a protection against the hazards of a
game, sport or competition , or for the prevention of injury.
In Admiral Craft Equipment Corp. v. United States, 82 Cust.
Ct. 162, C.D. 4796 (1979), the merchandise was disposable aprons
and bibs intended to protect the wearer's clothing. The court
added 'protection' to the list of functions of wearing apparel.
The instant warning vest is intended for none of the
purposes enumerated in C.D. 2006 and C.D. 4796, therefore it is
not classified as wearing apparel. The warning vest is merely a
piece of material which is worn over clothing.
The Explanatory Notes to Heading 6307 state that the heading
covers made up articles of any textile material which are not
included more specifically in other headings of Section XI or
elsewhere in the Nomenclature. The instant warning vest is not
included more specifically in the tariff, therefore it is
classified in Heading 6307. Similar merchandise has previously
been classified in Heading 6307 as other made up articles. See
Headquarters Ruling Letter 084341 of July 31, 1989, in which an
identifying police vest was classified in subheading
6307.90.9030, HTSUSA.
HOLDING:
The warning vest is classified under the provision for other
made up articles, including dress pattterns: other: other: other:
other, in subheading 6307.90.9490, HTSUSA, dutiable at the rate
of 7 percent ad valorem.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are modifying NYRL
848018 to reflect the above classification effective with the
date of this letter. However, if after your review, you
disagree with the legal basis for our decision, we invite you to
submit any arguments you might have with respect to this matter
for our review. Any submission you wish to make should be
received within 30 days of the date of this letter.
This notice to you should be considered a modification of
NYRL 848018 under 10 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 848018 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling. However, for the purposes of
future transactions of merchandise of this type, NYRL 848018 will
not be valid precedent. We recognize that pending transactions
may be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it. If such a situation
arises, you may, at your discretion, notify this office and
apply for such relief from the binding effects as may be
warranted by the circumstances. However, please be advised that
in some instances involving import restraints, such relief may
require separate approvals from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division