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HQ 963470




March 2, 2000

CLA-2 RR:CR:TE 963470 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.40.5020

Joanna Chung

Hong Kong Economic & Trade Office

1520 18th Street, N.W.
Washington, D.C. 20036

RE: Classification of a men’s woven outerwear garment

Dear Ms. Chung:

This ruling is in response to your letter of October 19, 1999, on behalf of Marmot Mountain, Ltd., requesting the classification of a men’s woven outerwear garment. A sample was submitted to this office for review and will be returned under separate cover.

FACTS:

The subject men’s upper body garment, referenced style 5220, features long sleeves with elastic and hook and loop type adjustment tabs at the end, a partial mesh lining, a full frontal opening with a stand-up, zip through collar with drawstring tightening, Coolmax® mesh inserts for ventilation under the arms, horizontal pockets with covered zippers in the left and right chest areas, a back yoke for ventilation and a hemmed shirt-type bottom with no tightening. The outershell is made from a ripstop nylon material with a windproof, waterproof, breathable Activent® application on the inner surface.

In PreClassification Letter (PC) C87009 dated May 12, 1998, this garment was classified in subheading 6210.40.5050, in the provision for other garments made up of fabrics of heading 5903, of man-made fibers, with corresponding textile quota category 659. It is your opinion that the subject merchandise should be classified as a men’s woven shirt under category 640, and request that we reclassify this merchandise accordingly.

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

First, we would like to emphasize that classification of merchandise in the HTSUS is based on the terms of the headings and not on a comparison of statistical suffixes and textile quota categories. Accordingly, any comparison that is executed is between the competing headings, based on the terms of the headings and any applicable section or chapter notes.

Before we can arrive at the appropriate classification for the subject merchandise, we must make a determination with respect to the fabric composition of this garment. Heading 6210, HTSUS, provides for garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907. Heading 5903 provides for textile fabrics impregnated, coated, covered, or laminated with plastics (except tire cord which is provided for in heading 5902). In order for a fabric to be considered a fabric of heading 5903, the impregnation, coating or covering of plastics must be visible to the naked eye as required by Note 2(a)(1) of Chapter 59, HTSUS, with no account taken of any resulting change in color.

It is Customs view that the wording of Note 2(a)(1), “visible to the naked eye”, is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered impregnated, coated or covered. The plastics material added to the fabric must be visibly distinguishable from that fabric without the use of magnification. Customs believes this criterion is satisfied when the application of plastics material visibly affects the surface character of the fabric. In such an instance, the naked eye is seeing the plastics.

Upon examination of the subject garment, this office believes that the plastics application on the outershell fabric is visible to the naked eye. As this qualifies as a fabric of 5903, HTSUS, the subject garment is properly classified in the appropriate provision of heading 6210, HTSUS.

Headquarters Ruling (HQ) 089036, dated July 10, 1991, addressing whether a garment was properly classifiable as a shirt, stated:

The Textile and Apparel Category Guidelines (CIE 13/88; 53 F.R. 52563, December 28, 1988) have been obliquely referred to by the inquirer in support of its position that the garments in question are “shirts.” However, the following is clearly stated in the beginning of the Guidelines.

These Guidelines do not purport to take into account every possible fabric, construction, and styling combination * * * As such, these guidelines are intended as indications of the types of construction and styling most likely to be encountered. Certain types of garments are so closely related in use, though, that the corresponding category designations seem to overlap. In such situations it should be remembered that the guidelines are to be used as an aid in determining the commercial designation * * * of an article.

In this instance the sample speaks eloquently for itself. It is clearly a pullover jacket designed to be worn over a shirt or other outer garment and certainly would not usually be worn as a shirt. Where the fabric and construction of a garment establish with certainty the identity of that garment, the guidelines may not be utilized to defeat that garment’s proper classification.

Similarly, in the case of the subject merchandise, the fabric and
construction of the garment at issue are indicative of its use and classification. The rugged windproof and waterproof coated fabric is not the type of fabric commonly found on men’s shirts. Additionally, features such as the zip-through, stand-up collar with a drawstring tightening and vented construction are characteristics not normally associated with shirts. This garment is clearly designed for use in strenuous activity in inclement weather conditions; that is, a garment that will be worn over another outerwear garment.

Although the subject garment was properly classified in heading 6210, HTSUS, we believe that the classification of this merchandise at the subheading level (6210.40.5050, in the provision for “other” garments) is not correct. Upon further review of this merchandise, we believe the appropriate classification for this garment is in subheading 6210.40.5020, HTSUSA, in the provision for anoraks, windbreakers and similar articles. Accordingly, PC C87009 is superceded to reflect the proper classification of this merchandise in subheading 6210.40.5020, HTSUSA.

HOLDING:

The subject garment, referenced style 5220, is properly classified in subheading 6210.40.5020, HTSUSA, which provides for, garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: other men’s or boys’ garments: of man-made fibers: other: anoraks (including ski-jackets), windbreakers and similar articles. The applicable rate of duty is 7.3 percent ad valorem and the textile quota category is 634.

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 suggest the importer 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, the importer should contact the 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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