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HQ 958417




March 25, 1996

CLA-2 RR:TC:TE CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6217.10.9010, 6217.10.9030

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.

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.

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

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