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HQ 963800




April 17, 2001

CLA-2 RR:CR:TE 963800 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.20.9050

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

RE: Application for Further Review of Protest No. 1704-00-100001; Polyvinyl chloride jacket and plastic rainwear; Subheadings 3926.20.6000 and 3926.20.9050, HTSUSA; General Rules of Interpretation 1 and 6.

Dear Port Director:

The purpose of this correspondence is to address the Application for Further Review of Protest Number:1704-00-100001, dated December 22, 1999. 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 filed on the behalf of Essex Manufacturing; (2) A meeting conducted at the Customs Service Headquarters on January 10, 2001, at which Essex Manufacturing was represented by counsel; (3) A review of a submission of Essex Manufacturing dated January 31, 2001; and (4) A review of a submission of Essex Manufacturing dated February 6, 2001.

It is specifically noted that this Office requested from the Protester, through counsel, copies of any and all marketing literature, as well as, information regarding the insulative material of which the garment in issue is composed. No marketing literature or information on the insulative material was provided. Counsel’s only response was the production of a licensing agreement and a four to five minute videotape of another style of fleece-lined PVC jacket being offered for sale through a cable television program. Customs, in addition to not being provided the requested documents and information, was not advised that no such documents or information existed and questions the thoroughness of Counsel’s response.

FACTS

The article in issue, identified by the Protesting Party as a “stadium jacket,” style number 1182H, is a long sleeve, waist-length jacket. The jacket labeling indicates that the outer shell is composed of one hundred (100) percent polyvinyl chloride (PVC), the shell backing or “scrim” is composed of sixty-five (65) percent polyester and thirty-five (35) percent cotton and the lining is one hundred (100) percent nylon.

The Customs Service laboratory analysis of a similar jacket concluded that the jacket had a visible application or coating of cellular polyvinyl chloride (PVC) on its external surface and that the surface was further covered with a transparent polyester urethane film. The analysis further established that the PVC backing is a single-knit fabric composed of yarns spun from a blend of synthetic and natural staple fibers.

The jacket features a collar that folds down and a zipper closure in the front. The zipper extends from the bottom of the jacket to the top of the collar. When the zipper is fully utilized, the collar folds up to form a “turtle-neck” type collar that loosely raps around the wearer’s neck. The waistband is elasticized, as are the sleeve cuffs. The jacket has two slash pockets on the front, outside aspect of the jacket. The slash pockets do not have storm flaps. A single pocket is located on the inside of the jacket, about chest level, on the wearer’s left side.

The jacket features the colors and logo of a National Football League team embroidered on the front exterior and the team name appliqued on the back.

The Protestant claims that the item 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, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the of the article described above and identified as a “stadium jacket” ?

LAW AND ANALYSIS

The classification of imported merchandise pursuant to the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides 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.” The materials of headings 3901 to 3914, HTSUSA, include, among other materials, polyvinyl chloride. The outer shell of the article in issue is composed of polyvinyl chloride and is reinforced with a single-knit textile fabric.

A review of the Chapter Notes to Chapter 39 and the Section Notes to Section XI indicate that goods which are classified pursuant to a Chapter 39 heading may not be classified in Section XI and vice versa. Chapter 39, note 2 (m) provides that Chapter 39 does not cover “[g]oods of section XI (textile and textile articles).” Section XI, Note (1)(h) states, in pertinent part, that knitted fabrics coated, covered or laminated with plastics are classified in Chapter 39. These legal notes, taken together, do not resolve the classification issue. The Customs Service must, therefore, apply other legal notes and consider the Explanatory Notes of the Harmonized Commodity Description and Coding System.

The Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. The Explanatory Notes, although neither legally binding or 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 Explanatory Note to Chapter 39 particularly the penultimate paragraph “Plastics and textile combinations” provides guidance for classifying the article in issue in heading 3926. The General EN states that plates, sheets and strip of cellular plastics combined with textile fabric, felt or nonwovens are specifically encompassed with in the purview of Chapter 39, when “the textile is present merely for reinforcing purposes.” Chapter 39, General Explanatory Note, Plastics and textile combinations (d). “Unfigured, unbleached, bleached or uniformly dyed textile fabricsare regarded as serving merely reinforcing purposes” when applied to only one face of the plates, sheets or strips. Id. See generally HQ 960783 (June 3, 1998), HQ 085863 (Jan. 19, 1990) and HQ 085186 (Oct. 17, 1989) (discussing textiles reinforcing plastic).

The General EN to Chapter 39 additionally provide that the classification of “plastics and textile combinations are essentially governed by Note 1 (h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.” The Chapter Notes to Chapter 59 are particularly relevant.

Chapter 59 Note 2 (a) (5) precludes classification of the fabric used in the jacket in heading 5903 where the textile fabric is present merely to reinforce the outer shell. A review of the Customs’ laboratory analysis and an examination of the jacket reveals that the textile fabric is only present on the inside face of the PVC cellular plastic and only serves to reinforce the outer shell.

Applying these legal notes in accordance with GRI 1 and giving consideration to the Explanatory Notes, the “stadium jacket” is properly classified in heading 3926, HTSUSA, which provides in pertinent part for the classification of articles of plastic. Since the notes to Section XI, Chapters 39, 56 and 59, HTSUSA, eliminate competing classification headings, despite the fact that the “stadium jacket” is a composite good composed of polyvinyl chloride, polyester, cotton and nylon, recourse to GRI 2 (b) and 3 is unnecessary.

Having concluded that the only HTSUSA heading in which the “stadium jacket” is classifiable is heading 3926, HTSUSA, the issue that remains to be determined is the appropriate subheading. The relevant subheadings, interpreted pursuant to General Rule of Interpretation 6, are subheadings 3926.20.60 and 3926.20.90, HTSUSA. Subheadings 3926.20.60 and 3926.20.90, HTSUSA, read as follows:

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.

3926.20.90 Other.

The principal issue is whether the “stadium jacket” is “plastic rainwear” pursuant to subheading 3926.20.60, HTSUSA, or an “other” article pursuant to subheading 3926.20.90, HTSUSA. General Rule of Interpretation 6 sets forth the criteria for classifying goods in the subheadings of a heading at the same subheading level. Reference to GRI 6 directs the analysis to GRI 1 which mandates an examination of the terms of the respective subheadings. Classification of the “stadium jacket” as “plastic rainwear” pursuant to subheading 3926.20.60, HTSUSA, requires establishing the following:

The article in issue is plastic;
The article is “rainwear,” which includes jackets, coats, ponchos, parkas and slickers; The article features an outer shell of polyvinyl chloride plastic; The article may, but need not feature an attached hood; and The article is not valued over ten ($10) dollars per unit.

Since it has previously been determined that the “stadium jacket” is composed of plastic, in particular it has a polyvinyl chloride plastic outer shell It is noted for the purposes of this Application for Further Review of Protest that the “stadium jacket” has an “outer shell of polyvinyl chloride” as required for classification in subheading 3926.20.6000. The Customs Service, at the time of entry of the merchandise was of the opinion that subheading 3926.20.6000 mandated an exterior surface of polyvinyl chloride. Customs, subsequent to further review of the tariff schedule, has concluded that its initial decision was incorrect. Subheading 3926.20.6000 requires that the article in issue have an “outer shell” as opposed to an outer or exterior surface of polyvinyl chloride. Since the polyvinyl chloride imparts the structure to the garment, the jacket, for classification purposes, has an “outer shell” of polyvinyl chloride., and that it need not have a hood, the primary question is whether the article has sufficient features for it to be designated as rainwear.

The “stadium jacket,” in order to be classified as “rainwear,” must be designed to protect the wearer from rain. It is the conclusion of the Customs Service that the “stadium jacket,” although possessing some features of rainwear, is not rainwear.

The slash pockets of the “stadium jacket” do not have storm flaps and any items carried by the wearer in the pockets will become wet. Customs is aware of the interior pocket, but has concluded that it is not a substitute for exterior pockets into which rainwater will pool. Customs also took note of the fact that the interior lining of the outside slash pockets is composed of nylon which will not prevent water from wetting the inside lining of the jacket. See generally, NY B89740 (Oct. 15, 1997) (addressing features of rainwear and non-rainwear jackets).

Counsel for Essex suggests that the exterior slash pockets of the “stadium jacket” in issue are “designed to remain flush to the outer shell of the garmentand that water would not generally seep into the jacket to any measurable extent.” (Emphasis added) Submission of Counsel, Jan. 31, 2001 at p. 11. Customs, subsequent to examining the jacket disagrees with the unsubstantiated claims of counsel. Rainwater will pool to an unacceptable extent when the wearer does not have his or her hands in the pockets and will have a greater tendency to accumulate water when the wearer places his or her hands in the pockets.

The collar, while capable of rapping around the wearer’s neck, will not prevent rain from wetting the wearer’s neck, chest or back. The collar, with the zipper pulled to the top of the jacket, only loosely fits around the wearer’s neck. It does not have the ability to tightly secure the jacket to the wearer’s neck and prevent the intrusion of rainwater either directly as it falls or indirectly running down the wearer’s neck.

Counsel for the Importer suggests that the wearer’s chin extending over the collar functions as an “overhang,” and that scarves, not jackets are the apparel accessories that protect a wearer’s neck from the intrusion of rain. The Customs Service does not believe that these assertions deserve serious consideration. It is the garment, pursuant to the tariff schedule, that must protect the wearer from the rain, not the garment wearer’s chin or a scarf. Counsel’s suggestion that the jacket must be worn with a scarf in order to protect the wearer only reinforces Custom’s conclusion that the jacket is not rainwear.

The “stadium jacket” lacks chest, back and underarm vents customarily found in rainwear to release perspiration and humidity. It is the conclusion of the Customs Service that the lack of chest, back and/or underarm vents indicates that the jacket is designed primarily for maintaining warmth, rather than protecting the wearer from rain.

Essex Manufacturing notes that “some rainwear garments are designed with vents,” but states that “vents do not provide any sort of protection from the rain.” Submission of Counsel, Jan. 31, 2001 at p. 6. Customs concurs with the Importer’s statement that vents do not protect the wearer from rain. Vents are not designed or intended to protect the wearer from rain. Vents are designed and intended to offer ventilation, thereby providing a release of perspiration and enabling ease of movement in the jacket. Customs, again referencing the Essex Manufacturing garment in HQ 963799, took notice of the presence of vents.

The zipper closure of the “stadium jacket” does not have a storm flap and the textile material that attaches the zipper to the polyvinyl chloride aspect of the jacket will allow rain to soak through wetting the wearer and the jacket lining. See generally, HQ 959973 Customs acknowledges that HQ 959973, dated August 4, 1997, was not in the Customs Service Infobase at the time the protest in this matter was filed. The lack of availability of HQ 959973 may have hindered the Protestant’s ability to protest the initial decision of Customs, but the ultimate responsibility of Customs to properly classify merchandise remains unaffected. (Aug. 4 1997), NY C88732 (June 18, 1998) and NY B84735 (Aug. 19, 1997) (addressing features of rainwear). Although “rainwear” with zipper closures need not have a storm flap, the lack of a storm flap with this garment is an indication that it was not designed to protect the wearer from rain. Customs was acutely aware of HQ 963799, a companion Essex Manufacturing protest decision, during the preparation of this ruling letter. The garment in HQ 963799, although manufactured of a different type of plastic that precluded its classification as “plastic rainwear,” possessed a storm flap that inhibited the intrusion of rainwater.

The embroidered NFL team logo on the front left side of the jacket and the stitching that borders the team logo on the back of the jacket further negate concluding that the jacket is rainwear. The team logo and the stitching that borders the logo on the back of the jacket are composed of the same textile material, contradicting the suggestion that the jacket is intended to be rainwear. Neither the embroidered logo nor the stitching, as counsel notes, permit rainwater to penetrate the outer shell, but both may absorb water. This is a feature that would not be expected on rainwear.

The Customs Service in rendering this ruling is particularly aware of Explanatory Note 39.04 which provides, in part, that “flexible sheet form polyvinyl chloride (PVC) is used widely as a waterproof material for raincoats, etc.” and is also used as a “high grade imitation leather.” Explanatory Note 39.04. Given the fact that the PVC material that forms the outer shell of the jacket may function as both a waterproof material and as a high grade imitation leather, it is not the material that is determinative of the jacket’s classification but, rather, how that material is used.

The Customs Service, during and after the meeting of January 10, 2001, requested from the Importer, through counsel, advertising literature and information addressing the jacket insulation. No marketing literature nor information regarding the jacket insulation was provided. The failure of Essex Manufacturing to provide the requested material and information, with the single exception of the videotaped cable television program, and its failure to offer an explanation leads Customs to conclude that the Importer does not market the garment as rainwear and that the “stadium jacket” is in fact designed to retain heat. 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).

It is the conclusion of the Customs Service that the Importer’s suggested classification of the garment as “plastic rainwear” is based solely on the fact that the garment is made of plastic. Garments which do not possess the features of rainwear are not properly classified in subheading 3926.20.9050, HTSUSA, simply because they are made of plastic. The “stadium jacket,” for classification purposes, is not rainwear.

The Customs Service is apprised of NY Ruling Letter A81527 issued on April 4, 1996. New York Ruling Letter A81527classified a similar, but not identical “stadium jacket” as an article of plastic rainwear pursuant to subheading 3926.20.6000, HTSUSA. New York Ruling Letter A81527 has been clarified to offer a better understanding of the merchandise’s classification as “rainwear.” The clarification of NY A81527 is HQ 964584 (Jan. 24, 2001).

The primary issue in this ruling letter has been whether the garment possessed the features of rainwear. The Customs Service having determined that the garment is not rainwear for classification purposes need not undertake resolution of whether the garment is valued under ten dollars for Customs’ purposes. It is specifically noted that no documents supporting the importer’s valuation determination were provided and subsequent to considering the extensive sewing, the lining and the probable licensing fees, the importer’s valuation is questioned.

HOLDING

The protest is DENIED in full.

The “stadium jacket” in issue is classified in subheading 3926.20.9050 HTSUSA.

The general column one rate of duty is five (5) 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 to the Protesant this decision and Customs Form 19, 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 the decision.

The Office of Regulations & Rulings will make this decision available to Customs personnel and to the public on the Customs Service Home Page on 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


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