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HQ 964231




May 17, 2001

CLA-2 RR:CR:TE 964231 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6102.30.2010

Lesa R. Hubbard, Customs Analyst
JCPenney Purchasing Corporation
6501 Legacy Drive
Plano, TX 75024-3698

RE: Reconsideration of Port Decision F85019; classification of women’s vest

Dear Ms. Hubbard:

This letter is in response to your correspondence with this office on May 24, 2000, in which you requested on behalf of J.C. Penney Purchasing Corporation, reconsideration regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of Port Decision (“PD”) Ruling Letter F85019, dated April 25, 2000. The garment submitted for reconsideration is a women’s vest from Taiwan. You disagree with the decision of the port to classify the subject merchandise as a knitted vest under subheading 6110.30.3035, HTSUSA, and claim that the merchandise is properly classified and entered as an other knit garment under 6114.30.3070, HTSUSA. A sample was submitted with your request.

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 March 28, 2001, in Vol. 35, No. 13 of the Customs Bulletin, proposing to modify PD F85019 and to revoke the treatment pertaining to the classification of a women’s fleece vest. No comments were received in response to this notice.

FACTS:

The submitted sample, style 662-9101 (the same number is used for Penney’s retail and catalogue sales) is a women’s knitted vest without sleeves but with oversized armholes. The vest also has a full-front zippered opening, a stand-up collar, and two side pockets at the waist. It extends from the wearer’s neck and shoulders to below her waist. The bottom of the front of the vest extends straight across the wearer’s body while the bottom of the rear curves downward toward the center and is lower than the front. The entire vest is formed from three layers of fabric: a knitted outer layer of fabric which is brushed on the outside; a woven inner fabric lining; and a polyester fiberfil layer sandwiched between them. The outer layer consists of 100 percent polyester; the inner layer is 100 percent nylon; and the fiberfil is 100 percent polyester. Horizontal quilting stitches run across the entire vest and join the outer layer to the fiberfil. The knitted fabric of the outer layer has more than nine stitches per two centimeters, measured in the direction in which the stitches are formed.

ISSUE:

What is the proper classification under the HTSUSA for 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 Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The issue in the instant case is whether the submitted sample is properly classifiable as a women's vest or other article. Heading 6110, HTSUS, eo nomine provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted” and heading 6102, HTSUS, eo nomine provides for “Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), wind cheaters, wind jackets and similar articles, knitted or crocheted.” However, you assert that classification is proper in heading 6114, HTSUS, which provides for other knit garments.

The 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 EN to heading 6110, HTSUS, provides:

This heading covers a category of knitted or crocheted articles, without distinction between male or female, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles).

This heading also excludes padded waistcoats of heading 6101 or 6102.

(emphasis added.)

The EN to heading 6102, to which the EN of heading 6101 apply mutatis mutandis, provide:

This heading covers a category of knitted or crocheted garments for [women or girls], characterised by the fact that they are generally worn over all other clothing for protection against the weather.

It includes:

Overcaots, raincoats, car-coats, capes including ponchos, cloaks, anoraks including ski-jackets, wind cheaters, wind-jackets and similar articles, such as three-quarter coats, greatcoats, hooded capes, duffel coats, gabardines, parkas, padded waistcoats.

(emphasis added.)

The subject merchandise is a women’s knitted vest and thus would apparently fall within the purview of the EN description for heading 6110, however, the subject merchandise contains a layer of fiberfil padding which would preclude classification within heading 6110, HTSUS. You assert that the garment is intended to be worn as an outer wear garment for weather protection. It is feasible that the subject merchandise might be worn over a light weight shirt and the layer of padding combined with the fleece knit would provide a degree of protection against the weather. Although we recognize the fabric weight is not an absolute indicator of the garment’s status for classification purposes, it does provide some indication as to the garment’s suitability for different uses. In this case, the lightweight fabric construction of the subject garment is typical of the fabrics used in today’s fashion trends which dictate that these types of vests can be worn indoors or outdoors for warmth when engaged in physical activities.

The port of Miami issued PD F85019 classifying the subject merchandise as a knit vest in heading 6110, HTSUS, yet you assert classification is proper in heading 6114, HTSUS which provides for other knit garments. The EN to heading 6114, HTSUSA, state the “heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of th[e] Chapter.” This heading is a “basket provision” and consideration of the “basket provision” over the more specific tariff provision which eo nomine refers to a vest is not appropriate for tariff classification.

In past rulings Customs has stated that the crucial factor in the classification of merchandise is the merchandise itself. As stated by the court in Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986), “the merchandise itself may be strong evidence of use”. However, when presented with articles which are ambiguous in appearance, Customs will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. Upon review of the most recent JCPenney catalogue Customs notes that the merchandise under consideration, style 662-9101, is advertised in your catalogue as a “Quilted Vest.”

The drafters of the Harmonized Tariff made an eo nomine reference to padded waistcoats (vests) within the EN to heading 6102. The language in the HTS is unambiguous and Customs must adhere to the plain meaning of the tariff heading. A physical examination of the garment reveals that it resembles a vest since it has no sleeves, oversized arm holes, and lightweight material. Customs believes that the subject merchandise is properly classified pursuant to GRI 1 as a vest. Accordingly, we find that the subject merchandise is properly classified in heading 6102, HTSUS.

HOLDING:

PD F85019 is hereby revoked.

The subject merchandise is properly classified under subheading 6102.30.2010, HTSUSA, which provides for "Women’s or girl’s overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6104: Of man-made fibers: Other: Other: Women’s.” The general column one rate of duty is 28.7 percent ad valorem. The applicable textile restraint category is 635.

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 you 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, you should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

EFFECT ON OTHER RULINGS:

PD F85019 is modified. 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

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