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HQ 964181




April 4, 2001

CLA-2 RR:CR:TE 964181 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3000, 6201.93.3511

Mr. Patrick Pillsbury
Cutter & Buck
Import Manager
2701 First Ave., #500
Seattle, WA 98121

RE: Men’s Hybrid Shirt/Jacket; Revocation of NY D89780

Dear Mr. Pillsbury:

On April 19, 1999, U.S. Customs issued New York Ruling Letter (“NY”) D89780 to AKA International, Inc. on behalf of Cutter & Buck, regarding the tariff classification of a windbreaker. The windbreaker was originally classified in heading 6211.33.0040 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) which provides for among other things, men’s other woven garments not otherwise provided for. You requested that Customs Headquarters reconsider the classification of the subject merchandise and it is the determination of this office that the subject merchandise is more properly classified in subheading 6201.93.3000, HTSUSA, if determined to be water resistant or in the alternative in subheading 6201.93.3511, HTSUSA, if not determined to be water resistant pursuant to U.S. Additional Legal Note 2 for Chapter 62 of the HTSUSA.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on December 20, 2000, in Vol. 34, No. 51 of the Customs Bulletin, proposing to revoke NY D89780 and to revoke the treatment pertaining to the men’s garment similar to a windbreaker. As explained in a notice published on February 21, 2001, in Vol. 35, No. 8 of the Customs Bulletin, the period within which to submit comments on this proposal was extended to March 23, 2001. No comments were received in response to these notices.

FACTS:

The merchandise submitted is a v-neck pullover short sleeved shirt made of polyester with a teflon impregnation and Climaguard fabric. The garment has an interior 100 percent polyester knit mesh lining. The lining covers the torso area only and does not extend to the sleeves. The waist features a ribknit waistband and there are two side seam pockets at waist level. The short sleeves are banded with ribknit cuffs that measure 20 inches in circumference. You claim that the shell fabric is Teflon® impregnated and therefore, the garment is both wind and water resistant.

ISSUE:

What is the proper classification of the subject merchandise?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

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.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

The ENs for heading 6205 state in pertinent part:

This heading does not cover garments having the character of wind-cheaters, wind jackets, etc. of heading 6201, which generally have a tightening at the bottom, or of the jackets of heading 6203, which generally have pockets below the waist. Sleeveless garments are also excluded.

The subject merchandise has pockets at waist level and also has features associated with wind-cheaters or wind jackets such as ribknit bottom and an inner lining as well as construction of the outer shell using fabrication of polyester with teflon impregnation which provides more durability than is associated with most shirts. The subject merchandise is therefore precluded from classification as a shirt of heading 6205, HTSUS, pursuant to the EN.

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 offer the following with regard to the classification of men’s or boy’s shirt-jackets:

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 or other heavy-duty closure, or buttons fastened with reinforcing thread for heavy-duty use.

(8) Lapels.

(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.

See Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE13/88 at 5-6 (Nov. 23, 1988).

Customs recognizes that the garment at issue is a hybrid garment, possessing features of both shirts and jackets. A physical examination of the garment at issue reveals that it possesses three of the Guidelines jacket criteria: the garment has elasticized or rib-knit cuffs, a ribbed waistband, and an inner lining. The garment therefore possesses the requisite number of Guidelines criteria and in addition is constructed from woven nylon which is typically used in windbreakers. The sample submitted is much like the jackets worn by golfers or other athletes for warmth or for protection from light rain.

We note that you claim this merchandise is similar to a hybrid shirt/jacket classified in heading 6202.92.2071, HTSUSA, as a women’s anorak, wind breaker or similar article which was the subject of DD 898668, dated June 17, 1994. Customs disagrees with such reasoning for the subject merchandise. In DD 898668, the shirt/jacket had a full frontal zipper, whereas your merchandise is a pullover garment and the comparison with DD 898668 is inappropriate.

The next issue is whether the garment at issue is classifiable as a 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.

(emphasis added).

It is the opinion of this office that the fabric used in the construction of the subject merchandise will provide a degree of protection against the weather due to the overall styling, knit lining, and woven nylon fabric. Although the subject garment possesses short sleeves, Customs believes that the merchandise is similar to garments which have been classified as wind breakers or wind cheaters and which are typically worn by golfers. The shorter sleeves of this particular garment may be preferable to some golfers who want more flexibility in their swing and do not want to be hampered by long sleeves. Considering that the garment meets three of the Guidelines features and is constructed of material typically found in such golfing gear, Customs does not believe that the short sleeves preclude classification of the subject garment in heading 6201. Accordingly, the merchandise is classifiable as an article similar to a men’s windbreaker under heading 6201, HTSUS.

You claim that the subject merchandise is water resistant but have not submitted any information which validates such claim. The Additional U.S. Note to Chapter 62 addresses the term “water resistant” and states in pertinent part:

For the purposes of [subheading 6201.93.30], the term “water resistant” means that garments classifiable in those subheadings must have a water resistance (see ASTM designations D 3600-81 and D 3781-79) such that, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates after two minutes when tested in accordance with AATCC Test Method 35-1985. This water resistance must be the result of a rubber or plastics application to the outer shell, lining, or inner lining.

The port of entry may perform such test for water resistant determinations and if the subject merchandise meets the aforementioned standards of U.S. Additional Note, Chapter 62, HTSUSA, the subject merchandise will be classified in subheading 6201.93.30, HTSUSA.

HOLDING:

NY D89780 is hereby revoked.

If the subject merchandise is determined to be water resistant, then the garment is classifiable under subheading 6201.93.3000, HTSUSA, which provides for "Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers, and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Water resistant.” The general column one rate of duty is 7.3% ad valorem. The applicable textile restraint category is 634.

If the subject merchandise is not determined to be water resistant, then the garment is classifiable under subheading 6201.93.3511, HTSUSA, which provides for "Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers, and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other: Men’s.” The general column one rate of duty is 28.4% ad valorem. The applicable textile restraint category is 634.

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.

EFFECT ON OTHER RULINGS:

NY D89780 is revoked. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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