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HQ 952823


January 15, 1993

CLA-2 CO:R:C:T 952823 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6202.93.4500, 6202.93.5020

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

RE: Revocation of HRL 084077 of July 7, 1989; Classification of a reversible jacket; 6113, HTSUSA, v. 6202, HTSUSA

Dear Mr. Cohn:

The Customs Service has had cause to review the decision rendered in HRL 084077 and the reasoning set forth in that ruling and we have found it to be in error. As your firm requested the ruling on behalf of Bradley Imports, Inc., we are issuing the revocation notice to you and request you notify your client.

FACTS:

On July 7, 1989, HRL 084077 was issued. That ruling dealt with a girls' reversible jacket consisting of 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 65 percent polyester and 35 percent cotton woven fabric. The garment was classified according to the coated outer shell in heading 6113, HTSUSA. The rationale of the decision never discussed the woven outer shell.

ISSUE:

Was the garment at issue in HRL 084077 properly classified in heading 6113, HTSUSA?

LAW AND ANALYSIS:

The rationale in HRL 084077 hinges on the language of subheading 6113.00.00, HTSUSA, i.e.:

Having an outer surface impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric. (bolding added).

The ruling focuses on the phrase "an outer surface" and classifies the garment in subheading 6113, HTSUSA, because it has "an outer surface" covered with plastics material which completely obscures the underlying fabric.

The competing provision, 6202, HTSUSA, was never discussed. This was an error. There is no doubt that the garment at issue therein could be classifiable in heading 6113, HTSUSA, but it could also have been classified in heading 6202, HTSUSA. HRL 084077 lacked any discussion of the legal notes of Chapters 61 and 62 and their application or non-application in regard to the garments at issue therein. The ruling lacked any discussion of the General Rules of Interpretation. Customs believes this is remedied by the discussion set out in HRL 951081 which is being issued to you on behalf of another client. We will not repeat the full discussion herein.

Following the General Rules of Interpretation, specifically GRI 3, since each heading, 6113 and 6202, refers to part only of the garments at issue in HRL 084077, each heading is equally applicable. Therefore, it is appropriate to apply GRI 3(b), i.e., classify the good according to that component which imparts the essential character.

Customs does not have the sample garments which were the subject of HRL 084077; nor, did we have them at the time the ruling was issued. However, in your recent submissions in regard to HRL 951081, it has been argued that the sample at issue in the more recent case is essentially identical to those in HRL 084077. That being the case, we believe that the classification decision set forth in HRL 951081 is equally applicable to HRL 084077. In HRL 951081, Customs determined that neither outer shell imparts the essential character. Since the classification could not be determined by resort to GRI 3(b), GRI 3(c) was utilized and the heading which appeared last in the tariff determined the classification.

Having reviewed the reasoning and conclusion in HRL 084077 and finding it in error, HRL 084077 of July 7, 1989, is hereby revoked pursuant to 19 CFR 177.9(d).

HOLDING:

The jackets at issue in HRL 084077, styles 100 and 200, are properly classified as girls' jackets similar to anoraks and windbreakers in subheading 6202.93.4500, HTSUSA, if water resistant, and subheading 6202.93.5020, HTSUSA, if not water resistant. The jackets fall within textile category 635 and are dutiable at 7.6 percent ad valorem, if water resistant, or 29.5 percent ad valorem, if not water resistant.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking HRL 084077, effective with the date of this letter. If after your review of this ruling letter, 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 revocation of HRL 084077 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 084077 (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 in merchandise of this type, this revocation of HRL 084077 will be in effect. We recognize that pending transactions may be adversely affected by this modification in that current contracts for importation 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 may apply for relief from the binding effects of this decision 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

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