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HQ 959732

April 28, 1997

CLA-2 RR:TC:TE 959732 RH


TARIFF NO.: 6211.43.0078; 6211.43.0091

Mr. Alfred R. De Angelus
De Angelus & Associates
1455 Pennsylvania Avenue, N.W., Suite 1150 Washington, D.C. 20004

RE: Firefighters' garments; protective garments; heading 6211; T.D. 91-78; outer shell

Dear Mr. De Angelus:

This is in reply to your request dated July 9, 1996, on behalf of Bristol Uniforms North America Inc., regarding the tariff classification of firefighters' protective garments.

At your request, two of my staff attorneys met with you and your client on December 3, 1996, to discuss the issues raised in your letter.

You submitted samples of the fabrics used in the manufacture of the garments for our consideration as well as a CONFIDENTIAL video tape. We are returning the video tape with this letter.


The merchandise under consideration consists of firefighters' protective garments which are made up of three layers of fabric, described in your letter as follows:
a) The outer shell is a fabric made from a woven inherently nonflammable, synthetic material of a meta/para-aramid combination. The Bristol garments have one of two types of fabric for the outer layer: - 2 -

Type one is Nomex III, which is a homogenous blend, by weight, of 95% meta-aramid with 5% by weight para-aramid, Nomex Kevlar. The outer surface has a fluorocarbon oleophobic application to improve water resistance and water run-off.

Type two is Nomex Delta T, which is a homogeneous blend by weight of 75% meta-aramid with 23% by weight para-aramid and 2% permanent anti-static fibre, P140.
b) The middle layer is a moisture barrier made of a waterproof, breathable, microporous, polytetrafluoroethylene laminated to a nonwoven "spunlace" which is an 85% meta-aramid and 15% para-aramid blend.

This is either Tetratex or Goretex , as both brands of nonwoven fabrics are used.
c) The inner layer is a thermal barrier consisting of a needlefelt nonwoven, made from various blends of inherently flame resistant synthetic fibers, quilt stitched to an inner woven lining of a 50/50 meta-aramid flame retardant viscose blend.

These meta-aramids are known as Kermel or Nomex.

There are 61 different styles of garments constructed from these fabrics. The garments are worn for firefighting and are designed to provide protection from burn injury as a result of heat exposure. The garments must be manufactured to meet National Fire Protection Association Standards and are tested for thermal insulation, nonflammability, strength, water resistance and durability. These standards require that the firefighting garments consist of the three layers described above.

You contend that the combination of the moisture barrier and the thermal barrier constitute the essential character of the firefighting garments due to their extraordinary and highly specialized nature as protective clothing. In your opinion, the garments are classifiable under subheading 6210.50.50 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for garments made up of fabrics of headings 5602, 5903, 5906 or 5907.

Alternatively, if Customs classifies the garments based on T.D. 91-78 (by their outer shell), you submit that they are classifiable under subheading 6202.93.45, HTSUSA (Jacket), and subheading 6204.63.12, HTSUSA (Trousers).


Whether the firefighter's garments are classifiable based on their outer shell in accordance with T.D. 91-78? If not, what is the correct tariff classification? - 3 -


Classification of goods under the 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. Customs seeks guidance in interpreting the terms of the headings in the Harmonized Commodity Description and Coding System Explanatory Notes, which although not legally binding, are recognized as the official interpretation of the Harmonized System at the international level.

In the past, Customs classified garments composed in part of linings or interlinings of specialized fabrics, or plastic membranes laminated to fabrics, or with heavy nonwoven insulating layers under heading 6113, HTSUSA (garments made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907), or under heading 6210, HTSUSA (garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907), based on the position that a garment was considered "made up" of any fabric which imparted a significant characteristic of the garment. That position changed as a result of T.D. 91-78, wherein Customs held that in headings 6113 and 6210, HTSUSA, the term "made up" only refers to that portion of a garment, e.g., the outer shell, which is considered in determining the ultimate legal classification of that garment. T.D. 91-78 further stated that while linings, interlinings or nonwoven insulating layers do impart desirable and, sometimes, necessary features to garments, it is usually the outer shell which imparts the essential character to the garment because the outer shell normally creates the garment.

In the comments portion of T.D. 91-78 we stated that "in almost all instances (except in the most extraordinary cases), it is our view that the outer shell will provide the essential character. . . ." We further stated:

A garment, in our opinion, is normally formed or created by its outer shell. Linings, interlinings, and nonwoven insulating fabrics do not form or create a garment. Rather, they add characteristics to the garment which serve to further define the garment and limit or expand the uses for which that garment may be suitable . . . Accordingly, it is customs position that while a heavy nonwoven fabric insulating layer, or a waterproof lining or interlining may contribute substantially to the characteristics of a garment, it is the outer shell of the garment which usually creates its identity (i.e., as a jacket, as pants, etc.) and, therefore, it is the outer shell which imparts the essential character to that article.

You claim that the Bristol garments should not be classified by the outer shell in accordance with T.D. 91-78 because this is an "extraordinary" case. In support of your argument, you submit that the garments would not constitute firefighting garments without the middle and inner layers. The linings in these garments are more complex than other coats suitable for inclement weather. They are what makes the garment suitable for firefighting. Moreover, the garments are not created by the outer shell which merely covers the layers that create the firefighting garments and make them fire protective. They are worn for firefighting duties in buildings, enclosed structures, vehicles or vessels, and are designed to provide protection from burn injury as a result of heat exposure or direct flame exposure.

In further support of your claim, you submitted a report by the President of International Personnel Protection, Inc., a research and development consulting firm, entitled A GENERAL DESCRIPTION OF FIRE FIGHTER PROTECTIVE CLOTHING DESIGN AND FUNCTIONS. He states that according to thermal protective performance testing the outer shell alone provides only 15.3% insulation, whereas the full composition (outer shell, moisture barrier and thermal barrier) provides 100% insulation. He further states that the purpose of the outer layer is to provide protection to the wearer from secondary hazards such as cuts, punctures, tears and abrasions, and to provide protection to the garment. Basically, the purpose of the outer layer is to protect the inner layers.

The firefighting garments are clearly protective garments. Although firefighting garments are not specifically provided for under a tariff heading, guidance as to their classification is set out in the EN. The EN to heading 6211 state:

The provisions of the Explanatory Note to heading 6112 concerning track suits, ski suits and swimwear and of the Explanatory Note to heading 6114 concerning other garments apply, mutatis mutandis, to the articles of this heading. However, the track suits of this heading may be lined.

The EN to heading 6114 (Other garments, knitted or crotched) includes, inter alia:

(1) Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc. (Emphasis added).

Moreover, Customs has interpreted protective clothing to include fire protection suits. See, Headquarters Ruling Letter (HQ) 951357, dated January 12, 1993. In that case, we distinguished between classification of protective-type garments under the Tariff Schedule of the United States (TSUS), and the HTSUSA:

[U]nder the TSUS, items such as firemen's turnout clothing, heat-reflective clothing and bomb suits were not classifiable under the wearing apparel provision of Schedule 3, TSUS, but under other residual provision providing for other articles not specially provided for, or textile materials, of in Schedule 7, TSUS, under the provisions for sports equipment . . . Since that time, HTSUSA has expanded the items classifiable as wearing apparel to include items previously excepted under those provisions, namely, flight suits, anti-radiation suits, certain protective sports clothing, fire protection suits, etc. (Emphasis added).

We agree with you that the inner layers of the garment add characteristics which define the garment and limit or expand its use for firefighting. The thermal barrier (inner layer) provides the majority of insulation to the garment to protect against direct flame and burn injury. The moisture barrier (middle layer) prevents water and other liquids from entering the material and reducing insulation within the thermal barrier.

We do not agree with you, however, that the garments are classifiable according to the inner layers, which you claim impart the essential character. The purpose of these layers, along with the outershell, is clearly to provide protection. The garments are protective clothing that are designed specifically for firefighting and are worn only for that purpose. Thus, they are classifiable under heading 6211, in accordance with the EN.

Finally, Note 8 to Chapter 62, pertains to classification of garments by gender. It states:

Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

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.

In this case, the jackets will be classifiable under subheading 6211.43 if they are women's, and under subheading 6211.33 if they are men's. The trousers cannot be identified as men's or women's garments and they are, therefore, classifiable under subheading 6211.43.


The firefighter garments are protective clothing classifiable under heading 6211. If the jackets are designed for left over right closure at the front they are classifiable as men's jackets under subheading 6211.33.0058, HTSUSA, and the textile category number is 634. If the jackets have a right over left closure they are classifiable under subheading 6211.43.0078, HTSUSA, and the textile category is 635. The firefighters' trousers are classifiable under subheading 6211.43.0091, HTSUSA, and the textile category is 659. All of the garments are dutiable at the general column rate of 16.7 percent ad valorem.

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 renegotiations and changes, to obtain the most current information available, we suggest that 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 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 importing the merchandise to determine the current applicability of any import restraints or requirements.


John Durant, Director
Tariff Classification Appeals

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