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HQ 956318



September 2, 1994

CLA-2 CO:R:C:T 956318 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.49.0010

District Director
U.S. Customs Service
6747 Engle Road
Middleburg Heig, OH 44130-7939

RE: Request for Further Review of Protest No. 4103-93-100007, dated December 30, 1992; Classification of upper body garment; jacket vs. blouse; Heading 6202; Heading 6211

Dear Sir:

This is response to the protest that was timely filed by Grunfeld, Desiderio, Lebowitz, & Silverman, on behalf of Lerner Stores, Inc., whereby they dispute the tariff classification of a woman's upper body garment under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted for examination.

FACTS:

The garment at issue is referred to as Style 2990. Style 2990 is a woman's upper body garment constructed of 100 percent silk fabric. The garment is unlined, extends to the mid-thigh area, contains shoulder pads, a notched collar, a rear yoke, long sleeves with button cuffs, a full frontal opening with flap and button closures, two slant pockets below the waist, and a drawstring means of closure at the waist with plastic cord stoppers.

Initially the subject merchandise was entered under subheading 6204.39.6000, HTSUSA, which provides for women's suit-type jackets containing 70 percent or more by weight of silk or silk waste. However, in the protest claim, the protestant contended that the merchandise was properly classifiable under Heading 6202, HTSUSA, which provides for 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. The District Director of Customs in Ohio determined that the subject merchandise was properly classifiable under Heading 6211, HTSUSA, which provides for track suits, ski- suits and swimwear; other garments.

ISSUE:

Whether the subject garment is classifiable under Heading 6202, HTSUSA, as a windbreaker or similar garment, or in Heading 6211, HTSUSA, as an other garment?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined 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 taken in order.

The instant garment is possibly classifiable under two distinct headings. As stated above, the possible headings are Heading 6202, HTSUSA, which provides for, among other garments, anoraks, windbreakers and similar articles and Heading 6211, HTSUSA, which provides for other garments. The importer contends that the garment is properly classifiable as a "windbreaker-type jacket". The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN to Heading 6101, HTSUSA, which applies mutatis mutandis, to the articles of Heading 6202, HTSUSA, state that the garments of this heading are generally characterized by the fact that they are generally worn over all other clothing for protection against the weather. The instant garment is constructed of 100 percent silk fabric which is a lightweight material not generally utilized for wear over other garments for protection against inclement weather. The garment contains substantial shoulder pads which are fashion embellishments not usually found in a windbreaker style jacket. Finally, the overall appearance of the subject garment including the cut, fit, and sueded material is not indicative of a windbreaker or similar type jacket. Consequently, Customs does not believe that the subject garment is classifiable under Heading 6202, HTSUSA.

The importer refers to The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 [hereinafter Textile Guidelines], to substantiate his claim that the subject garment is classifiable as a windbreaker-type jacket under Heading 6202, HTSUSA. The importer cites page 6 of the Textile Guidelines which states that garments having features of both jackets and shirts will be categorized as jackets if they possess at least three of the listed features and if the result is not unreasonable. The importer further maintains that Style 2990 possesses the following features which manifest its use as an outer-garment: (1) a full frontal opening (2) long sleeves with buttoned sleeve cuffs, (3) it extends from the upper body to below the waist, (4) slanted pockets below the waist, (5) large jacket/coat style buttons (6) a drawstring tightening at the waist, and (7) two large front chest pockets with button closures. It is important to note that the guidelines are not legally binding and merely used as a guide in determining the proper commercial designation and, thus the tariff classification among classes of garments.

Usually Customs consults the Textile Guidelines when a garment possesses features of more than one type of garment; this type of garment is sometimes referred to as a hybrid. In this case there is no indication that the garment at issue is a hybrid containing shirt and jacket features. When examining the garment in its entirety, it is clear that from its weight, styling, and fabric make-up, that it is not a jacket-type garment. Therefore, reference to the Textile Guidelines is unnecessary in this case. As a result of the foregoing, the subject garment is classifiable under Heading 6211, HTSUSA, as an other garment.

HOLDING:

At the time of entry, Style 2990 was properly classified in subheading 6211.49.0010, HTSUSA, which is the provision for track suits, ski-suits and swimwear; other garments, women's or girls', containing 70 percent or more by weight of silk or silk waste. The applicable rate of duty was 7.8 percent ad valorem and at that time the merchandise was not subject to a textile restraint category.

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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