CLA-2 RR:TC:TE CMR
Jack D. Mlawski
Galvin & Mlawski
440 Park Avenue South
New York, New York 10016-8067
RE: Reconsideration of New York Ruling Letter (NYRL) 812847
Dear Mr. Mlawski:
This is in response to your request of September 7, 1995, on
behalf of your client, Caribbean Shoulder Pad USA, Inc., for
reconsideration of NYRL 812847 of August 15, 1995, regarding the
classification of various shoulder pads. Samples were received
with your request.
FACTS:
NYRL 812847 classified three styles of shoulder pads in
heading 6217, Harmonized Tariff Schedule of the United States
(HTSUS), as other made up clothing accessories. The shoulder
pads consisted of style 9228, a polyurethane foam pad covered on
the top portion with a nonwoven, needle-punched cotton textile
fabric; style 9510, a polyurethane pad covered on the top portion
with a woven polyester fabric and on the bottom with a nonwoven,
needle-punched cotton fabric; and, style 4087, a polyurethane
foam pad covered on the top and bottom with a nonwoven, needle-punched cotton fabric. The should pads are manufactured in the
Dominican Republic.
Reconsideration of NYRL 812847 is sought based upon a belief
the shoulder pads are properly classified as other articles of
plastics of heading 3926, HTSUS. You base your claim on an
essential character argument utilizing General Rule of
Interpretation 3.
-2-
ISSUE:
Were the subject shoulder pads properly classified in NYRL
812847 as goods of heading 6217, HTSUS, or are they classifiable
as other articles of plastics of heading 3926, HTSUS?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA) is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
Heading 6217, HTSUS, provides for, among other things, other
made up clothing accessories. The Explanatory Notes (EN) to the
Harmonized Commodity Description and Coding System, the official
interpretation of the tariff at the international level, provide
for the following guidance in regard to heading 6217, and
specifically in regard to shoulder and other pads:
This headings covers made up textile clothing accessories,
other than knitted or crocheted, not specified or included
in other headings of this Chapter or elsewhere in the
Nomenclature. The heading also covers parts of garments or
of clothing accessories, not knitted or crocheted, other
than parts of articles of heading 62.12.
The heading covers, inter alia:
* * *
(2) Shoulder or other pads. These are usually made of
wadding, felt, or textile waste covered with textile
fabric. Shoulder and other pads consisting of rubber
(usually cellular rubber) not covered with textile
material are excluded (heading 40.15).
* * *
You argue that in classifying these shoulder pads in heading
6217, HTSUS, Customs has failed to address whether the goods are -3-
classified in Chapter 62 pursuant to the chapter notes. You cite
Note 1, Chapter 62, which states:
This Chapter applies only to made up articles of any textile
fabric other than wadding, excluding knitted or crocheted
articles (other than those of heading No. 62.12).
You then cite the General EN for Chapter 62 which state, in part:
The classification of goods in this chapter is not
affected by the presence of parts or accessories of, for
example, knitted or crocheted fabrics, fur skin, feather,
leather, plastics or metal. Where, however, the presence of
such materials constitutes more than mere trimming the
articles are classified in accordance with the relative
Chapter Notes (particularly Note 4 to Chapter 43 and Note
2(b) to Chapter 67, relating to the presence of fur skin and
feathers, respectively), or failing that, according to the
General Interpretative Rules.
In response to your arguments, Customs would point out that
the shoulder pads at issue are made up articles and they are made
up using textile fabric as well as polyurethane foam. Thus, the
shoulder pads do meet the requirements of Note 1, Chapter 62 for
classification within the chapter.
Styles 4087 and 9510 fall within the description in the EN
cited above for heading 6217. Both of these shoulder pads are
covered with textile fabric with the exception of the side view
of the pads at their widest points. The polyurethane foam is
visible by this side view and, especially in style 9510, some of
the foam extends beyond the shoulder pad shape delineated by the
textile fabric cover. Based upon the description in the EN, we
believe these styles were properly classified in heading 6217,
HTSUS, using GRI 1. See, Headquarters Ruling Letter (HRL) 557057
of February 23, 1993 (shoulder pads with outer shell of 100
percent cotton knit fabric and foam padding insert classified in
heading 6117, HTSUS); NYRL 853539 of July 3, 1990 (shoulder pads
consisting of foamed plastic centers with woven textile fabric
outer shells classified in heading 6217, HTSUS); NYRL 851651 of
May 21, 1990 (shoulder pad with an inner filling of foam rubber
and an outer shell of nonwoven man-made fiber fabric classified
in heading 6217, HTSUS); and, HRL 953832 of July 14, 1993
(brassiere cup consisting of foam rubber covered with a nylon
knit fabric outer shell classified in heading 6117, HTSUS). As
to the language of the General EN cited above, we believe we must
read the EN together. As the EN for heading 6217, HTSUS, -4-
describes the scope of that heading and the goods fall within
that description, we see no reason to refer to the General EN in
order to try to exclude them.
In regard to style 9228, we agree that classification based
upon GRI 1 is not possible. This style does not neatly fall
within the description of shoulder pads found in the EN for
heading 6217. Unlike styles 4087 and 9510 which are covered on
both sides with textile fabric, style 9228 has textile fabric
only on one side. We agree that classification of this style is
dependent on an application of GRI 3.
GRI 3 provides, in relevant part, that when goods are
classifiable under two or more headings, the heading which
provides the most specific description is preferred over one
providing a more general description. However, when two or more
headings refer to part only of the materials or components
contained in composite goods, those headings are to be regarded
as equally specific. If that occurs, then classification is
based upon that material or component in the composite good that
confers the essential character of the good. If an essential
character determination cannot be made, then classification is
based upon the heading which occurs last in the tariff among the
headings which equally merit consideration.
In the case of style 9228, the shoulder pad consists of a
polyurethane foam pad and a textile fabric cover. The nonwoven
fabric cover is sewn onto one side of the foam pad and the cover
itself consists of three pieces of fabric which have been sewn
together to fit the contours of the foam pad. As the shoulder
pad consists of two different materials, it is a composite good.
If classified based upon the textile component, the good would be
classified in heading 6217, HTSUS, as a textile clothing
accessory. If classified based upon the polyurethane foam pad
component, the good is classified in heading 3926, HTSUS, as an
other article of plastics. As heading 6217 and 3926 each refer
to only one component/material of the subject shoulder pad, each
heading is considered to be equally specific.
In your submission, you argue that the essential character
of the shoulder pads is imparted by the polyurethane foam pads.
You argue that it is the pads that provide the form and bulk to
the shoulder of the wearing apparel and that this is the purpose
of the shoulder pad. You also state that the textile component's
primary purpose is to provide a means of attachment to the
wearing apparel and to cover the foam material so it is not
exposed on the interior of the completed garment. -5-
As you state in your submission, each component of the
shoulder pads at issue serve a purpose. The foam pad provides
shape and bulk; the textile fabric provides a means of attachment
and protection to the garment. As you submit, foam pads without
textile coverings are available and imported in that condition.
The textile fabric cover is a choice of the consumer, but clearly
the choice of its presence is because it serves a purpose. The
components work together to meet the needs of the purchaser. In
the case of style 9228, it is difficult for Customs to view one
component as more essential than the other.
As classification based upon essential character is not
possible in this case, the classification of style 9228 must be
based upon GRI 3(c), i.e., that heading which occurs last in the
tariff of the headings at issue. The heading which occurs last
in this case is heading 6217, HTSUS.
HOLDING:
Based upon the above analysis, the classification
determinations in NYRL 812847 of August 15, 1995 are correct.
Styles 9228 and 4078 are classified in subheading 6217.10.9010,
HTSUSA, textile category 359, dutiable at 15.3 percent ad
valorem. Style 9510 is classified in subheading 6217.10.9030,
HTSUSA, textile category 659, dutiable at 15.3 percent ad
valorem. (This is based upon the man-made fiber fabric component
and application of GRI 3(c).) The analysis in this ruling should
be considered further clarification of the basis for the
classifications in NYRL 812847.
The designated textile and apparel category may be subdivided
into parts. If so, the 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 renegotiations and changes, to obtain the most current
information available, we suggest you check, close to the time of
shipment, the Status Report On Current Import Quotas (Restraint
Levels), an internal issuance of the U.S. Customs Service which is
updated weekly and is available for inspection at your local
Customs office.
-6-
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 importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division