United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2001 HQ Rulings > HQ 963686 - HQ 963822 > HQ 963799

Previous Ruling Next Ruling
HQ 963799




April 17, 2001

CLA-2 RR:CR:TE 963799 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.50.3000

Area Port Director
U.S. Customs Service
700 Doug Davis Drive
Atlanta, Georgia 30354

RE: Application for Further Review of Protest No.: 1704-00-100007; Subheadings 3926.20.6000, 6210.40.3000 and 6210.50.3000, HTSUSA; General Rules of Interpretation 1 and 6.

Dear Area Port Director:

The purpose of this correspondence is to address the Application for Further Review of Protest Number: 1704-00-100007, dated January 25, 2000. The Importer of Record and Protesting Party is Essex Manufacturing, Inc. The Protesting Party is represented by Neville, Peterson & Williams.

The Customs Service issued a Notice of Action to Essex Manufacturing, Inc. The Notice of Action indicated that a rate advance had been taken based on the conclusion of the Customs Service Import Specialist that the Importer had not properly classified certain merchandise. The Importer, subsequent to receipt of the Notice of Action, filed a Protest challenging the Customs Service classification. Essex Manufacturing’s Protest accompanied an Application for Further Review that was approved.

A review of the Protest (Customs Form 19) and the Customs Protest and Summons Information Report (Customs Form 6445A) indicates that the protest was timely filed pursuant to 19 U.S.C. 1514 (c) (3) (West 1999) and 19 C.F.R. 174.12 (e) (2).

This Protest decision is being issued subsequent to the following: (1) A review of the Protest and Memorandum of Points and Authorities in Support of Protest submitted on the behalf of Essex Manufacturing; (2) A meeting conducted at the Customs Service Headquarters on January 10, 2001, at which time Essex Manufacturing was represented by Counsel; and (3) A review of Customs Service laboratory report number: 4-99-50420. Counsel for the Importer, at the January 10, 2001 meeting, was extended the opportunity to provide an additional submission. No submission related to this protest was forthcoming.

FACTS

The garment in issue, a jacket designed to protect the wearer from rain, is a long-sleeve, mid-thigh length article. It is Navy blue and identified by the manufacturer as style 277.

The jacket, according to attached labeling, is composed of a one-hundred (100) percent polyvinyl chloride (PVC) outer shell with a one-hundred (100) percent nylon backing. A Customs Service laboratory report indicates that the jacket is wholly composed of a compact polyvinyl chloride (PVC) plastic-coated fabric with a synthetic fiber plain weave fabric backing. The Customs Service laboratory did not identify any cellular plastic. The polyvinyl chloride plastic, on visual inspection, completely obscures the underlying nylon fabric.

The jacket features a front zipper closure. The zipper closure is protected from the elements by a storm flap that secures closed through the use of snaps. The jacket has an attached hood with a firm peak. The garment secures around the wearer’s neck by means of a top snap and a drawstring closure that has two spring-loaded plastic locks. The material of the jacket rises above the wearer’s neck when secured to prevent the intrusion of rain.

Two slash pockets are located on the lower, front aspect of the jacket, one on each side of the jacket. The pockets have storm flaps that inhibit the intrusion of rain. The bottom of the garment secures to the wearer through the use of a drawstring and two spring-loaded plastic locks, identical to those that secure the jacket around the wearer’s neck. The jacket has vents that encircle the garment at the wearer’s chest. The sleeve cuffs are elasticized

The Protestant claims that the garment is not valued in excess of ten ($10) dollars.

ISSUE

Did the Customs Service properly issue the Notice of Action taking a rate advance based on the Importer of Record’s incorrect classification of the merchandise pursuant to the Harmonized Tariff Schedule of the United States Annotated ?

LAW AND ANALYSIS

Essex Manufacturing imported into the Port of Atlanta the above-describe merchandise which it identified as “plastic rainwear” and classified in subheading 3926.20.6000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The Customs Service Import Specialist reviewed the Entry Summary and the merchandise, and concluded that the merchandise should have been classified in subheading 6210.40.3000, HTSUSA, as a men’s or boys garment made up of a fabric of heading 5903, HTSUSA, that had man-made nylon fibers that were coated or covered with plastic which completely obscured the underlying nylon.

Essex Manufacturing suggests that the garment in issue is properly classified as plastic rainwear in subheading 3926.20.6000, HTSUSA. Subheading 3926.20.6000, HTSUSA, provides:

Other articles of plastics and articles of other materials of headings 3901 to 3914:

Articles of apparel and clothing accessories (including gloves):

Other:
3926.20.60 Plastic rainwear, including jackets, coats, ponchos, parkas and slickers, featuring an outer shell of polyvinyl chloride plastic with or without attached hoods, valued not over $10 per unit.

The classification of imported merchandise pursuant to the Harmonized Tariff Schedule of the United States is governed by the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.”

GRI 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation in their sequential order.

Heading 3926 of Chapter 39 of the HTSUSA, Plastics and Articles Thereof The titles of sections, chapters and sub-chapters are provided for ease of reference only. General Rule of Interpretation 1., provides for the classification of “Other articles of plastics and articles of other materials of headings 3901 to 3914.” Heading 3926, HTSUSA. The materials of headings 3901 to 3914, HTSUSA, include, among other materials, polyvinyl chloride, a polymer of vinyl chloride. The jacket being imported is constructed of a woven nylon fabric that is coated or covered with a compact polyvinyl chloride plastic material.

The General Explanatory Note to Chapter 39, particularly the penultimate paragraph “Plastics and textile combinations,” assist in determining whether the article in issue may properly be classified in heading 3926, HTSUSA. The Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUSA. The EN are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The General EN provides, in pertinent part, that plates, sheets and strip of cellular plastics combined with textile fabric, felt or nonwovens are specifically encompassed within Chapter 39, when the textile is present merely for reinforcing purposes. See Chapter 39, General Explanatory Note, Plastics and textile combinations (d). Merchandise may, therefore, only be classified in Chapter 39 if the plates, sheet or strip of plastic that is combined with the textile fabric is cellular. Since the PVC plastic of which the jacket is made is compact rather than cellular, the jacket is not classifiable in Chapter 39. Cf. NY A83556 (May 20, 1996) (classifying a woman’s parka with an outer surface of polyvinyl chloride cellular plastic material in subheading 3926.20.6000, HTSUSA).

The Customs Service need not address the issue of whether the nylon fabric of the jacket is “present merely for reinforcing purposes” as addressed in the General Explanatory Note. Chapter 39, General Explanatory Note. Resolution of the issue of whether the textile fabric serves merely to reinforce the plastic is unnecessary, as previously stated, because the plastic material of which the jacket is composed is compact, not cellular, precluding classification in Chapter 39.

Referencing GRI 1, which mandates that the classification of merchandise begin with a determination of the appropriate heading prior to proceeding to a review of the subheadings, the jacket in issue is not classifiable as plastic rainwear in subheading 3926.20.6000, HTSUSA. The jacket is composed of a compact plastic, rather than cellular plastic, combined with a textile fabric. It is not, for that reason, the merchandise described in heading 3926, HTSUSA, precluding consideration of any subheading within heading 3926, HTSUSA.

The Customs Service rate advance in the Notice of Action issued to the Protestant was premised on the merchandise being properly classified in subheading 6210.40.3000, HTSUSA. The Customs Service will, therefore, examine subheading 6210.40.3000, HTSUSA, to determine if it is the correct HTSUSA subheading for the merchandise in issue.

Subheading 6210.40.3000, HTSUSA, provides:

Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907:

Other men’s or boy’s garments:

Of man-made fibers:
6210.40.30 Having an outer shell impregnated, coated, covered or laminated with rubber or plastics material which completely obscures the underlying fabric.

Classification of the jacket in heading 6210, HTSUSA, initially requires that the garment be made up of a fabric of one of the five enumerated headings of Chapters 56 and 59, HTSUSA. A review of the enumerated headings indicates that the only heading applicable to the jacket in issue is heading 5903, HTSUSA. Heading 5903, HTSUSA, provides for the classification of “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.”

A review of the Chapter Notes to Chapter 59 further addresses the question of whether the jacket is properly classified in heading 6210. Chapter 59, Note 2 states that heading 5903, HTSUSA, applies to “[t]extile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular).” Chapter 59, Note 2 (a), HTSUSA. Chapter 59 Note 2 (a) does, however, state exceptions to the general principle.

The Chapter Notes to Chapter 59 announce six exceptions to the general principle that heading 5903, HTSUSA, applies to textile fabrics, impregnated, coated, covered or laminated with plastics. The exception of relevance to the instant legal analysis is exception five. Chapter 59 Note 2 (a) (5) provides that “[p]lates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes” are properly classified in Chapter 39 rather than Chapter 59. (Emphasis added) Chapter 59, Note 2 (a) (5), HTSUSA. The jacket under consideration, as previously stated, is composed entirely of compact plastic not cellular plastic. Exception (5) to Chapter 59, Note 2 (a) is, therefore, not applicable and the jacket comports with the dictates of Chapter 59 Note 2 (a). See also Chapter 39, General Explanatory Note (providing that the classification of plastics and textile combinations are essentially governed by Note 1 to Section XI, Note 3 to Chapter 56 and, in particular, Note 2 to Chapter 59).

Having concluded that the garment is properly classified in heading 6210, HTSUSA, the correct subheading remains to be determined. The Customs Service, pursuant to General Rule of Interpretation 6, will apply GRI 1 to the six digit subheading level of heading 6210, HTSUSA. General Rule of Interpretation 6 provides for the application of GRI 1 through GRI 5 for the purpose of determining the correct subheading of a heading when comparing subheadings at the same level. See General Rule of Interpretation 6, HTSUS.

A review of subheadings 6210.10 HTSUSA, through 6210.50, HTSUSA, of heading 6210, HTSUSA, leads the Customs Service to the conclusion that the correct six digit subheading is 6210.50, HTSUSA. The merchandise in issue is not: (1) “Of fabrics of heading 5602 or 5603,” subheading 6120.10, HTSUSA; (2) “Other garments of the type described in subheadings 6201.11 to 6201.19,” subheading 6210.20, HTSUSA; or (3) “Other garments of the type described in subheadings 6202.11 to 6202.19,” subheading 6210.30, HTSUSA.

The remaining subheadings at the six digit level are subheading 6210.40, HTSUSA, “Other men’s or boy’s garments” and subheading 6210.50, HTSUSA, “Other women’s and girls’ garments.” A review of the Chapter Notes of Chapter 62, an examination of the garment and, in this instance, an understanding of to whom the garment is marketed results in the conclusion that the correct six digit subheading is 6210.50, HTSUSA.

Determining whether a garment classified in Chapter 62 is properly classified as a “men’s or boys’ garment” or a “women’s or girls’ garment” requires an examination of Chapter 62, Note 8. Note 8 provides:

Garments of this chapter designed for left over right closure at the front shall be regarded as men’s or boys’ garments, and those designed for right over left closure at the front as women’s or girls’ garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or the other of the sexes.

Garments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments. Chapter 62, Note 8, HTSUSA.

The Customs Service, subsequent to a review of the chapter note and with an understanding of how garments with both zippers and storm flaps are constructed and function, concludes that the initial aspect of the chapter note, addressing the direction of closure, is inapplicable to the classification of the garment in issue.

The jacket in issue has a zipper closure and a storm flap. The garment secures closed through the use of the zipper. Zippers are neutral closures, securing garments closed neither right over left, nor left over right.

The storm flap is designed to prevent the intrusion of wind and rain. The storm flap secures to the jacket by snaps. Absent the snaps, the storm flap would be of minimal or questionable value. The storm flap is attached to the right side of the instant garment and secures over the zipper to the left side of the garment through the use of five snaps.

Although utilization of the snaps that secure the storm flap to the jacket may function to secure the jacket closed, use of the storm flap snaps in this fashion is secondary. Use of the storm flap snaps is neither a faster nor a more efficient method of securing the jacket closed.

It is the conclusion of the Customs Service that neither the zipper, which is a neutral closure, nor the storm flap, particularly the direction in which it secures to the jacket, should be taken into consideration for the purpose of determining whether the garment is properly classified as a man’s or woman’s garment.

The Customs Service, in reliance on the technical expertise of the National Commodity Specialist Division of the Office of Regulations and Rulings, additionally concludes that classifying garments with both zippers and storm flaps based on the direction the storm flap closes would result in the misclassification of a significant percentage of garments. The National Commodity Specialist Division advises that most outerwear designed for men or boys and a significant percentage of outerwear designed for women or girls that have both zippers and storm flaps have zipper pulls on the right side. Garments that have both zippers and storm flaps in which the zipper pull is on the right side generally have storm flaps that close left over right.

Storm flaps generally secure closed in the direction of the side of the garment with the zipper pull. Storm flaps secure in this manner because of the difficulty that would be encountered by the wearer in attempting to zip closed a jacket with the zipper pull on the same side as the storm flap. Classification of garments based on the direction of closure of the storm flap, that is in turn dependent on whether the zipper pull is on the left side or the right side of the garment, would result in a significant percentage of garments being incorrectly classified as women’s or girls’ garments.

Having concluded that it would be inappropriate to classify garments with both zippers and storm flaps based on the initial aspect of Chapter 62, Note 8, addressing the direction of the closure, the Customs Service must next examine the cut of the garment. The cut of the instant jacket is gender neutral, failing to provide a basis for classifying the jacket in subheading 6210.40, HTSUSA, or 6210.50, HTSUSA.

The Customs Service, prior to relying on the final aspect of the legal note which classifies gender neutral garments by default as women’s or girls’, undertook to determine how the jacket is marketed. The jacket, as revealed by the jacket label, is marketed under the trade name “Misty Harbor.” “Misty Harbor” rainwear, according to information obtained by Customs, is marketed to women. See Mast Industries v. United States, 9 C.I.T. 549 (C.I.T. 1985) aff’d 786 F.2d. 1144 (Fed.Cir. 1986) (providing that an understanding of the design, manufacture, marketing and use of apparel assists in its classification).

Although the Import Specialist concluded that the jacket was a “men’s or boys’ garment” of subheading 6210.40, HTSUSA, the Customs Service, on further review of the law, the garment and the merchandising, concludes that the jacket should be classified as a “women’s or girls’ garment” in subheading 6210.50, HTSUSA. Since knowledge of the garment’s merchandising assisted Customs in determining that it is a women’s or girls’ garment, the garment is not being classified by default pursuant to Chapter 62, Note 8, as a women’s or girls’ article. Relying on the application of GRI 1 to the six digit subheading level, the subheading description of subheading 6210.50, HTSUSA, describes the merchandise.

The only issues that remain to be addressed prior to classifying the garment pursuant to GRI 6 in subheading 6210.50.3000, HTSUSA, are straightforward. The jacket is composed of a man-made nylon fabric that is impregnated, coated, covered or laminated with a polyvinyl chloride plastic. The plastic coating or covering completely obscures the underlying nylon fabric.

Essex Manufacturing suggests that the underlying nylon fabric is de minimis and should be disregarded. A plain reading of the tariff schedule, particularly subheading 6210.50.3000, HTSUSA, does not support the position of the Importer. Neither the HTSUSA nor the Explanatory Notes offer a basis for disregarding the underlying nylon fabric and Counsel has not provided one.

HOLDING

The protest is DENIED in full.

The garment in issue is classified in subheading 6210.50.3000, HTSUSA.

The general column one rate of duty is five and three-tenths (5.3) percent, ad valorem.

In accordance with Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, section 3 A. (11) (b), you are to mail this decision and Customs Form 19 to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing this decision.

The Office of Regulations & Rulings will make this decision available to Customs Service personnel and to the public on the Customs Service Home Page of the World Wide Web, www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution sixty days from the date of this decision.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: