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HQ 956205




May 20, 1994

CLA-2 CO:R:C:T 956205 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.32.0075

Eleanore Kelly-Kobayashi
Rode & Qualey
295 Madison Avenue
New York, N.Y. 10017

RE: Classification of a men's upper body garment; jacket v. shirt; 100% cotton flannel; full frontal heavy-duty zipper; back tabs; shirt collar; Textile Category Guidelines, CIE 13/88; 6211.42.0054; jacket.

Dear Ms. Kelly-Kobayashi:

This is in response to your letter of March 2, 1994, requesting a binding ruling on behalf of your client, Shah Safari, Inc., regarding the classification of a men's upper body garment. A sample was submitted to this office for examination.

FACTS:

The garment at issue, identified as style number Y0383894, is a men's woven cotton flannel upper body garment. It has long sleeves with cuffs, two diagonal pockets at the waist, a hemmed straight bottom with back tabs and a shirt-type collar. The garment features a full frontal opening with a zipper closure; the teeth of the zipper, in their closed condition, measure approximately 6 mm in width. You submit that the fabric weight of the garment is 7.7 ounces per square yard.

You have provided this office with three black and white, enlarged photographs of male models wearing the subject garment in a Shah Safari advertisement.

ISSUE:

Whether the subject merchandise is properly classifiable as a men's jacket under heading 6201 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as a men's shirt-jacket of heading 6211, HTSUSA, or as a men's shirt under heading 6205, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

The issue in the instant case is whether the submitted sample is properly classifiable as a men's shirt or jacket. A physical examination of the garment reveals that it possesses features traditionally associated with both jackets and shirts and therefore potentially lends itself to classification as either a coat or jacket under headings 6201 or 6211, HTSUSA, or as a shirt under heading 6205, HTSUSA.

In circumstances such as these, where the identity of a garment is ambiguous for classification purposes, reference to The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, (Guidelines) is appropriate. The Guidelines were developed and revised in accordance with the HTSUSA to ensure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles.

The Guidelines, at pages 5 and 6, offer the following with regard to the classification of shirt-jackets:

"Category designation: Other coats, men's and boys':

Three-quarter length or longer garments commonly known as coats, and other garments such as... waist length jackets fall within this category... A coat is an outerwear garment which covers either the upper part of the body or both the upper and lower parts of the body. It is normally worn over another garment, the presence of which is sufficient for the wearer to be considered modestly and conventionally dressed for appearance in public, either indoors or outdoors or both.

Shirt-jackets have full or partial front openings and sleeves, and at the least cover the upper body from the neck area to the waist... The following criteria may be used in determining whether a shirt-jacket is designed for use over
another garment, the presence of which is sufficient for its wearer to be considered modestly and conventionally dressed
for appearance in public, either indoors or outdoors or both:

(1) fabric weight equal to or exceeding 10 ounces per square yard;

(2) a full or partial lining;

(3) pockets at or below the waist;

(4) back vents or pleats. Also side vents in combination with back seams;

(5) Eisenhower styling;

(6) a belt or simulated belt or elasticized waist on hip length or longer shirt-jackets;

(7) large jacket/coat style buttons, toggles or snaps, a heavy-duty zipper;

(9) long sleeves without cuffs;

(10) elasticized or rib knit cuffs;

(11) drawstring, elastic or rib knit waistband.

Garments having features of both jackets and shirts will be categorized as coats if they possess at least three of the above-listed features and if the result is not unreasonable... Garments not possessing at least three of the listed features will be considered on an individual basis."

In your submission to this office, you state that style Y0383894 possesses three of the Guidelines jacket features enumerated supra. Specifically, you mention the garment's (1) pockets located below the waist; (2) heavy-duty zipper; and (3) back tabs which you state to be akin to back vents or pleats. You also state that the 7.7 ounce per square yard fabric used in the manufacture of this garment is 25 percent heavier than similar fabric used in the manufacture of shirts.

A physical examination of the garment at issue reveals that it possesses only two of the Guidelines jacket criteria: the garment has pockets at or below the waist and features a heavier gauge zipper than is usually found on shirts. We do not agree that back tabs are a jacket feature, as no mention of back tabs
are made in the Guidelines. The Guidelines specifically cite back vents and pleats as jacket features and we do not agree that back tabs are akin to back vents or pleats in either a utilitarian or a decorative sense. In fact, there are several styles of shirts which incorporate back tabs into their design and therefore this feature cannot be deemed a jacket feature.

In further support of your contention that the garment at issue is a jacket, you cite Headquarters Ruling Letters (HRL's) 954607, dated October 12, 1993, and 952270, dated February 1, 1993. In the first case, Customs determined that a garment possessing only two of the Guidelines jacket features was nevertheless classifiable as a jacket inasmuch as the garment was designed to be worn over other outerwear and provided "the overall impression of a jacket." In HRL 952270, this office classified a men's hybrid garment as a jacket under heading 6211, HTSUSA. This determination was based on a finding that the garment possessed three Guidelines jacket features and created the overall impression of a jacket.

We note that the garments classified in both HRL 954607 and 952270 are significantly different from style Y0383894. The garment classified in HRL 954607 was a women's jacket featuring two Guidelines jacket features: long sleeves without cuffs and lapels. As the garment possessed only two Guidelines jacket features, classification was based on the garment's individual characteristics and the overall impression they created. In the instant case, style Y0383894 also has two Guidelines jacket features, but they are different from those found on the garment classified in HRL 954607 and no analogy can be drawn between the two garments. Similarly, the garment classified in HRL 954607 is different from style Y0383894 in that that garment was constructed with four panels and possessed three jacket features. You submitted three large black and white photographs to this office in which style Y0383894 is depicted being worn in a "grunge" layered look; the garment is shown worn tied around the waist and being worn layered atop several other shirts. This photograph is not persuasive evidence of the garment's status as a jacket inasmuch as sweaters, shirts, jackets and pullovers are
equally capable of being worn tied around the waist, and shirts may also be worn over other shirts.

Customs recognizes that the garment at issue is a hybrid garment, possessing features of both shirts and jackets. Although the garment possesses only two of the Guidelines jacket features, this office is of the opinion that style Y0383894 creates the overall impression of a jacket. This determination rests primarily on the presence of the full frontal heavy-duty zipper, the teeth of which measure approximately 6 mm in width. Although full frontal zippers are relatively uncommon in shirts, it is the heavy gauge of the zipper which serves to create the impression of a jacket, rather than a shirt.

The next issue is whether the garment at issue is classifiable as an anorak, wind-breaker or similar article of heading 6201, HTSUSA, or as a shirt-jacket of heading 6211, HTSUSA. The Explanatory Notes (EN) to heading 6101, which apply mutatis mutandis to the articles of heading 6201, HTSUSA, state:

"[T]his heading covers ... garments for men or boys, characterised by the fact that that they are generally worn over all other clothing for protection against the weather."

It is this office's opinion that the shirting fabric used in the construction of style Y0383894 is not heavy enough to provide protection against the weather. Accordingly, style Y0383894 is classifiable under subheading 6211.32.0075, HTSUSA.

HOLDING:

Style Y0383894 is classifiable under subheading 6211.32.0075, HTSUSA, which provides for "[T]rack suits, ski-suits and swimwear; other garments: other garments, men's or boys': of cotton... jackets and jacket-type garments excluded from headings 6201...," dutiable at a rate of 8.6 percent ad valorem. The applicable textile quota category is 334.

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 your client 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 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, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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