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HQ 964642




May 18, 2001

CLA-2 RR:CR:TE 964642 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6113.00.1010

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

RE: Application for Further Review of Protest No.: 1704-00-100293; Subheadings 3926.20.6000 and 6113.00.1010, 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: 1704-00-100293, received by the Customs Service on October 12, 2000. The Importer of Record and Protesting Party is Essex Manufacturing, Inc. The Protesting Party is represented by counsel.

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) and 19 C.F.R. 174.12 (e) (2).

This Protest decision is being issued subsequent to a review of the Protest and the Memorandum of Points and Authorities in Support of Protest submitted by counsel on the behalf of Essex Manufacturing. The issue in this Protest is similar to the issue raised by Essex Manufacturing in Protest No. 1704-00-100001. See HQ 963800 (April 17, 2001). The submissions made on the behalf of the Importer and the comments of counsel addressed at a meeting conducted at the Customs Service Headquarters on January 10, 2001 concerning Protest No. 1704-00-100001 were taken into consideration prior to rendering this decision.

FACTS

The garment in issue, identified by the manufacturer as a “Misty Harbor” “Ladies ¾ Length Fly Front Car Coat,” is a long-sleeve, mid-thigh length article. It is black and further identified by the manufacturer as style number 244.

The jacket, according to attached labeling, is composed of a one hundred (100) percent polyvinyl chloride (PVC) outer shell with a seventy-five (75) percent polyester and twenty-five (25) percent rayon fleece body lining. The sleeves have a one-hundred (100) percent nylon lining. Labeling indicates that the garment fill is one-hundred (100) percent polyester.

Customs’ examination of the garment reveals that the PVC outer shell is compact plastic. The compact plastic outer shell has a knit textile fabric backing.

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 zipper does not have a storm flap. The waistband is not elasticized, nor does it secure by means of a drawstring.

The sleeve cuffs secure closed by way of a single snap on each cuff. The cuffs have a two and one-forth (2 ¼) inch opening at the top of the cuff that enables the wearer to slide his or her hand through the opening before it may be snapped closed.

The jacket has two slash pockets on each side of the front, outside aspect of the jacket. The slash pockets do not have storm flaps.

The jacket does not have vents customarily found on rainwear.

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

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described style number 244 “Ladies ¾ Length Fly Front Car Coat” ?

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 6113.00.1010, HTSUSA, as a women’s or girls’ coat or jacket made up of a knitted fabric of heading 5903, HTSUSA, that had an outer surface that was impregnated, coated, covered or laminated with plastic which completely obscured the underlying knit fabric.

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:

3926.20 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 knit 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,” assists 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 coat or jacket is made is compact rather than cellular, the garment is not classifiable in Chapter 39. See HQ 963799 (April 17, 2001); 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 knit 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 garment 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 coat or jacket in issue is not classifiable as plastic rainwear in subheading 3926.20.6000, HTSUSA. The garment 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 under heading 3926, HTSUSA.

The Customs Service decision being protested is the change in classification of the merchandise from subheading 3926.20.6000, HTSUSA, to subheading 6113.00.1010, HTSUSA. The Customs Service will, therefore, examine subheading 6113.00.1010, HTSUSA, to determine if it is the correct HTSUSA subheading for the coat or jacket in issue.

Subheading 6113.00.1010, HTSUSA, provides:

6113.00 Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907:

Having an outer shell impregnated, coated, covered or laminated with rubber or plastics material which completely obscures the underlying fabric

Coats and jackets:

6113.00.1010 Women’s or girls’.

Classification of the garment in heading 6113, HTSUSA, initially requires that it be made up of a fabric of one of the three enumerated headings of Chapter 59, HTSUSA. A review of the enumerated headings indicates that the only heading applicable to the garment 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 coat or jacket is properly classified in heading 6113. 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 coat or 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 garment 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 6113, HTSUSA, the correct subheading remains to be determined. The Customs Service, pursuant to General Rule of Interpretation 6, will apply GRI 1 to determine the correct subheading within heading 6113, 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 subheading 6113.00.10, HTSUSA, and subheading 6113.00.90, HTSUSA, the only two subheadings at the initial subheading level, leads the Customs Service to the conclusion that the correct eight digit subheading is 6113.00.10, HTSUSA. Subheading 6113.00.10, HTSUSA, which provides for garments “[h]aving an outer shell impregnated, coated, covered or laminated with rubber or plastics material which completely obscures the underlying fabric” is more descriptive of the article than subheading 6113.00.90, HTSUSA, a residual subheading only providing for “[o]ther.” The Essex coat or jacket has an outer shell that is impregnated, coated, covered or laminated with a compact plastic material which completely obscures the underlying knit fabric backing.

Classifying the garment at the ten digit subheading level also requires the implementation of GRI 1 pursuant to GRI 6. The two subheadings at the ten digit level are subheading 6113.00.1005, HTSUSA, “Coats and jackets: Men’s or boy’s” and subheading 6113.00.1010, HTSUSA, “Coats and jackets: Women’s and girls’.” A review of the Chapter Notes of Chapter 61, 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 ten digit subheading is 6113.00.1010, HTSUSA.

Determining whether a garment classified in Chapter 61 is properly classified as a “men’s or boys’ garment” or a “women’s or girls’ garment” requires an examination of Chapter 61, Note 9. Note 9 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 zippers 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 Essex garment.

The jacket in issue secures closed through the use of a zipper. Zippers are neutral closures, securing garments closed neither right over left nor left over right. It is the conclusion of the Customs Service that the zipper, which is a neutral closure, should not be taken into consideration for the purpose of determining whether the garment is properly classified as a man’s or a woman’s coat or jacket.

The Customs Service concludes that classifying garments with zipper closures based on the side of the garment on which the zipper pull is located would result in the misclassification of a significant percentage of garments. Most outerwear designed for men or boys and a significant percentage of outerwear designed for women or girls that have zippers, have zipper pulls on the right side.

Having concluded that it would be inappropriate to classify garments with zippers based on the initial aspect of Chapter 61, Note 9, addressing the direction of the closure, the Customs Service must next examine the cut of the garment. The cut of the instant coat or jacket is gender neutral, failing to provide a basis for classifying it in subheading 6113.00.1005, HTSUSA, or 6113.00.1010, 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” and is identified as a “Ladies ¾ Length Fly Front Car Coat.” “Misty Harbor” apparel, 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). It is, therefore, the conclusion of the Customs Service that Essex Manufacturing’s ladies car coat is properly classified as a women’s or girls’ coat or jacket in subheading 6113.00.1010, HTSUSA.

The primary issue in this ruling letter has been whether the garment is an article of plastic classified in heading 3926, HTSUSA, or a knitted article classified in heading 6113, HTSUSA. The Customs Service, having determined that the coat or jacket is properly classified in heading 6113, HTSUSA, need not undertake resolution of whether it is valued under ten dollars as mandated for classification in subheading 3926.20.60, HTSUSA. It is specifically noted that no information supporting the importer’s valuation determination was provided and subsequent to considering the extensive sewing, as well as, the lining, the importer’s valuation is questioned.

HOLDING

The protest is DENIED in full.

The “Ladies ¾ Length Fly Front Car Coat” in issue is classified in subheading 6113.00.1010, HTSUSA.

The General Column One Rate of Duty is five and three-tenths (5.3) percent, ad valorem, for merchandise entered or withdrawn for consumption in 2000.

The General Column One Rate of Duty is four and nine-tenths (4.9) percent, ad valorem, for merchandise entered or withdrawn for consumption in 2001.

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

Commercial Rulings Division

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