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HQ 951081


January 15, 1993

CLA-2 CO:R:C:T 951081 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6202.92.1500, 6202.92.2070

Scott Cohn, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Classification of a girls' reversible jacket; 6113, HTSUSA, v. 6202, HTSUSA, v. 6210, HTSUSA

Dear Mr. Cohn:

This ruling is in response to your request of December 17, 1991, and supplemental submission of May 13, 1992, on behalf of your client, Rosbro Sportswear Company, Inc., regarding the classification of a girls' reversible jacket. The merchandise will be imported from China.

FACTS:

The garment at issue, style 7033, is a girls' reversible jacket with one outer shell of knit tricot fabric coated with a non-transparent polyurethane substance that completely obscures the underlying fabric and a second outer shell made up of 100 percent cotton woven fabric pieces of assorted colors. The garment features a full frontal opening secured by a reversible zipper, long sleeves with elasticized sleeve cuffs, and a zipper placket, secured by hook-and-loop fasteners, which cover the zipper on the cotton shell and go inside the jacket when the polyurethane shell is exposed.

The woven outer shell is bright and colorful featuring adjustable waist tabs, pockets with snap closure flaps, and a drawstring at the neck which is threaded through the collar. The polyurethane shell is a solid color and also features adjustable waist tabs and a drawstring at the neck which is threaded through the collar. This outer shell has slash pockets at the waist.

ISSUE:

Is the subject jacket, style 7033, classified according to the knit tricot and polyurethane outer shell in heading 6113, HTSUSA, as a garment, made up of knitted or crocheted fabric of heading 5903, or according to the woven cotton outer shell as a girls' woven jacket of heading 6202, HTSUSA?

LAW AND ANALYSIS:

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 and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In HRL 080817 of August 31, 1987, Customs addressed the issue of the classification of apparel under the Harmonized System and Customs position that in most instances garments will be classified according to their outer shell material. In this case, we are faced with two outer shells. In other words, we have two classification choices--classification based on the knit polyurethane coated outer shell or, classification based on the woven outer shell.

If the garment is classified according to the knit polyurethane coated outer shell, it is classifiable under heading 6113, HTSUSA. If the garment is classified according to the woven outer shell, it is classifiable under heading 6202, HTSUSA. Thus, the competing provisions are as follows:

6113.00.00 Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907

6202.00.00 Women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204.

In your supplemental submission, you have attempted to argue that by application of the chapter notes for Chapters 61 and 62, the subject jacket must be classified in Chapter 61. This is based on your interpretation of the notes and the GRIs. You argue that the garment is made up partly of knit fabric, i.e., the outer shell of knit tricot covered with polyurethane, and therefore, applying GRI 2(b), must be considered a knit article classified in Chapter 61 and excluded from Chapter 62. However, you have failed to recognize that the same argument may be made for the woven outer shell. Applying GRI 2(b), it can be argued -3-
that the garment is made up partly of woven fabric and therefore must be considered a woven article classified in Chapter 62 and excluded from Chapter 61.

Another argument put forward is that classification according to the coated outer fabric, as opposed to the non- coated woven fabric, is in accord with the objective of the statute. Chapters 61 and 62 each contain chapter notes [Note 7, Chapter 61 and Note 5, Chapter 62] which direct that when garments are classifiable in the provision within the chapter for garments made up of fabrics of headings 5903, 5906 or 5907, that provision is to take precedence over any other provision in the chapter within which the garments are, prima facie, classifiable [excluding the provision for babies' garments]. Therefore, if a garment has two knit outer shells, one of which is made up of a fabric of heading 5903, by application of Note 7, Chapter 61, the garment would be classifiable in heading 6113, HTSUSA. Likewise, if a garment has two woven outer shells, one of which is made up of a fabric of heading 5903, by application of Note 5, Chapter 62, the garment would be classifiable in heading 6210, HTSUSA.

In this case, the garment has two outer shells--one of a knit coated fabric of heading 5903 and the other of a cotton woven fabric. The difficulty presented by this situation is that the outer shells are classifiable in separate chapters. The legal notes referenced above, Note 7, Chapter 61, and Note 5, Chapter 62, are specifically limited by their language to application within their respective chapters. While there may be some merit to an argument of a statutory scheme, the language of the statute is plain on its face and Customs will not reach beyond it. In the absence of clear and convincing evidence to the contrary, the common meaning of words must prevail. United States v. Rembrandt Electronics, Inc., 64 CCPA 1, C.A.D. 1175 (1976).

As to your argument, citing HRL 084077 of July 7, 1989, that as the language of the provision states "having an outer surface", it is not necessary that both outer surfaces of a reversible garment meet the requirement of the provision, we agree. However, the fact that the garment is classifiable in heading 6113, HTSUSA, does not negate the fact that it is also classifiable by its other outer shell in heading 6202, HTSUSA.

Application of General Rule of Interpretation (GRI) 3 is the appropriate remedy. Applying GRI 3(a), headings 6113 and 6202 would appear to be equally applicable as they each refer to part only of the materials from which the garment at issue is made. GRI 3(b) requires determination of the component which imparts the essential character. Finally, GRI 3(c) would require classification according to the heading which appears last in the tariff. -4-

As headings 6113 and 6202 are equally applicable under GRI 3(a), we must decide if either the knit coated outer shell or the woven outer shell imparts the essential character to the jacket. Each outer shell contributes to the value of the jacket in terms of function and features that would attract the interest of a consumer. While the knit coated outer shell may cost more and be heavier than the cotton woven outer shell, the difference is not so great to discount the cotton woven outer shell. It has features which contribute to the value of the jacket such as its colorful and attractive design. Neither outer shell clearly outweighs the other so that one may be considered to impart the essential character. Therefore, GRI 3(c) becomes applicable and classification is based upon the heading which appears last in the tariff.

As to T.D. 91-78 and arguments that it supports your position that the garment at issue is classifiable according to the knit coated outer shell, we disagree. The interpretation given to T.D. 91-78 in your submission is incorrect. The T.D. is not intended to override the application of the legal notes in Chapters 61 and 62. The T.D. does not support an argument for cross application of the chapter notes. Neither does it support classification within heading 6210 as a garment, made up of fabric of heading 5903. The Harmonized Commodity Description and Coding System Explanatory Notes, which represents the official interpretation of the HTS at the international level, specifically excludes garments made up of knitted or crocheted fabrics of heading 5903 from heading 6210.

In regard to HRL 084077 of July 7, 1989, your submission has caused us to review that ruling and we have determined it to be in error. The ruling will be revoked.

Your request for detrimental reliance will be addressed in a separate letter.

HOLDING:

The garment at issue, style 7033, if not water resistant, is classifiable as a girls' woven cotton jacket in subheading 6202.92.2070, HTSUSA, textile category 335, dutiable at 9.5 percent ad valorem. If water resistant, the garment is classifiable in subheading 6202.92.1500, HTSUSA, textile category 335, dutiable at 6.6 ad valorem.

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 -5-
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
Commercial Rulings Division

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