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HQ 964646




August 23, 2002

CLA-2 RR:CR:TE 964646 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.10.9010; 6210.10.9040

Ms. Linda G. Baird
Shelby Group International, Inc.
P.O. Box 171814
Memphis, TN 38187-1814

RE: Reconsideration of NY G81748 as corrected in NY G83641; Classification of Men’s Rainwear; GRI 6

Dear Ms. Baird:

This letter is in response to your request of November 10, 2000, for a reconsideration of New York Ruling letter (“NY”) G81748, dated October 18, 2000, concerning the classification of a men’s three piece rain suit under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Customs notes that NY G83641, dated October 30, 2000, corrected a typographical error in NY G81748 and therefore the reconsideration request will be based on NY G83641. A sample was submitted with your request. NY G83641 is upheld for the reasons set forth below.

FACTS:

The subject merchandise, style number 6003, is a three piece rain suit consisting of a jacket with a full front left over right snap closure. The coat features a collar, two flap closure pockets and a detachable hood with drawstring closure. The bib overalls are secured with plastic fasteners and also have a one snap fly and a snap on each leg for tapering. The garments are constructed of nonwoven fabric coated on the outside with a compact PVC plastic material. The garments are manufactured in China.

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.

Legal Note 13 to Section XI, HTSUSA, states:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale. For the purposes of this Note, the expression “textile garments” means garments of headings 6101 to 6114 and headings 6201 to 6211.

Therefore, determination of the proper classification for the subject merchandise requires the consideration of the following HTSUSA provisions: heading 6201, HTSUSA, eo nomine provides for inter alia “Men’s or boys’ overcoats, carcoats and similar articles, other than those of heading 6203;” heading 6203, HTSUSA, eo nomine provides for bib overalls and heading 6210, HTSUSA, provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907.”

Legal Note 5 to Chapter 62, HTS, states:

Garments which are prima facie classifiable both in heading 6210 and in other heading of this Chapter excluding heading 6209, are to be classified in heading 6210.

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 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 they are generally worn over all other clothing for protection against the weather. It includes:

Overcoats, 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 EN to heading 6210, state:

With the exception of babies’ garments of heading 6209, this heading covers all garments made up of felt or nonwovens, whether or not impregnated, coated, covered or laminated, or of textile fabrics (other than knitted or crocheted fabrics) of heading 5903, 5906, 5907, without distinction between male or female wear.

This heading includes raincoats, oilskins, diver’s suits and anti-radiation protective suits, not combined with breathing apparatus.

It should be noted that articles which are, prima facie, classifiable both in this heading and in other headings of this Chapter, excluding heading 6209, are to be classified in this heading (see Chapter Note 5).

Therefore, application of Legal Note 5 and the relevant ENs direct that classification of the subject merchandise is proper in heading 6210. Determination of the proper classification at the next level requires a comparison of the subheadings provided within heading 6210. As previously stated, heading 6210 provides for garments manufactured from fabrics of heading 5602, 5603, 5903, 5906, or 5907. These headings provide for the following fabrics:

5602 Felt, whether or not impregnated, coated, covered or laminated 5603 Nonwovens, whether or not impregnated, coated, covered or laminated
5903 Textile fabrics, impregnated, coated, covered or laminated with plastics, other than those of heading 5602 5906 Rubberized textile fabrics, other than those of heading 5902 5907 Textile fabrics otherwise impregnated, coated, covered; painted canvas being theatrical scenery, studio back-cloths or the like

You have suggested that classification of the subject rainwear is proper in subheading 6210.40.3000, HTSUSA, which provides for “. . . Other men’s or boys’ garments: Of man-made fibers: Having an outer surface impregnated, coated, covered or laminated with rubber or plastics material which completely obscures the underlying fabric.” While this subheading may at first glance appear to be more specific for the subject merchandise based on the wording of the subheading text itself, a close examination of the classification principles lends to a different subheading classification within the HTSUSA.

GRI 6, HTS, states:

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule the relative section and chapter notes also apply, unless the context otherwise requires.

The ENs for GRI 6, HTS, further provide in relevant part:

For the purposes of Rule 6, the following expressions have the meanings hereby assigned to them:

(a) “subheadings at the same level”: one-dash subheadings (level 1) or two-dash subheadings (level 2).

Thus, when considering the relative merits of two or more one-dash subheadings within a single heading in the context of Rule 3(a), their specificity or kinship in relation to a given article is to be assessed solely on the basis of the texts of the competing one-dash subheadings. When the one-dash subheading that is most specific has been chosen and when that subheading is itself subdivided then, and only then, shall the texts of the two-dash subheadings be taken into consideration for determining which two-dash subheading should be selected.

(emphasis added.)

Therefore, when considering the subheadings for classification of the subject merchandise, comparison of the one dash subheadings is sufficient to determine the proper classification. Subheading 6210.10, HTS, provides for garments constructed of felt or nonwoven fabrics, whereas subheading 6210.40 provides for other men’s or boys’ garments. In other words, subheading 6210.40, HTS, provides for men’s or boys’ garments constructed of fabrics other than felt or nonwovens. The construction of the subject rainwear is undisputably of nonwoven fabric which has subsequently been coated with a compact PVC plastic material. Therefore based upon a comparison of the subheadings at the one dash level, classification is proper in subheading 6210.10, HTSUSA for the subject raincoat and overalls.

You have inappropriately suggested that classification of the subject merchandise at the subheading level should be based on GRI 3(c) because you believe that GRI 3(a) and 3(b) are inapplicable. You claim that the merchandise is not a “set put up for retail sale.” Customs agrees with you that the subject merchandise does not constitute a “set put up for retail sale” under the HTSUSA, however, Customs does not agree that GRI 3(c) is applicable.

GRI 3 provides, in pertinent part:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The EN to GRI 3(a), states in pertinent part that “when two or more headings each refer . . . to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the others. In such cases, the classification shall be determined by Rule 3(b) or 3(c).” In this regard, EN Rule 3(b)(X), p.5, states in pertinent part that “ ‘goods put up in sets for retail sale’ shall be taken to mean goods which consist of at least two different articles which are, prima facie, classifiable in different headings. . . .; consist of products or articles put up together to meet a particular need to carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking. . . .”

The textile merchandise under consideration must be classified separately pursuant to Legal Note 13 to Section XI, HTSUSA, and is therefore not considered a set which contains components which are adapted to each other and are mutually complimentary in their intended function. Therefore, for classification purposes the components are not considered to form a “set put up for retail sale” and resort then, to GRIs 3(b) and 3(c) is inappropriate. Classification of the subject merchandise is proper in heading 6210 pursuant to GRI 1.

You have also provided a copy of Treasury Decision 91-78 concerning the Classification of Garments Composed in Part of Linings or Interlinings of Specialized Fabrics or Nonwoven Insulating Layers, 56 Fed. Reg. 177, 46372 (1991). This notice states in pertinent part:

[Customs believes] that the term “made up” in Headings 6113 and 6210, HTSUS, only refers to that portion of a garment, e.g. the outer shell, which is considered in determining the ultimate legal classification of that garment.

This notice supports Customs classification of the subject merchandise in heading 6210, HTSUSA. The subject rain suit is made of a nonwoven fabric that is coated on the outside with a compact PVC plastic material. The “outer shell” of the subject merchandise then is a coated PVC fabric. As provided in the ENs to heading 6210, and reinforced in the notice which you have provided classification of the subject merchandise is proper in heading 6210, HTSUSA, which specifically provides for raincoats constructed of nonwoven coated fabric.

HOLDING:

NY G83641, dated October 30, 2000, is hereby affirmed.

The subject raincoat with detachable hood is properly classified in subheading 6210.10.9040, HTSUSA, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907: Of fabrics of heading 5602 or 5603: Other: Other: Other: Other.” The general one column rate of duty is 16.2 percent ad valorem and the textile restraint number is 659.

The subject overalls are properly classified in subheading 6210.10.9010, HTSUSA, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907: Of fabrics of heading 5602 or 5603: Other: Other: Other: Overalls and coveralls.” The general one column rate of duty is 16.2 percent ad valorem and the textile restraint number is 659.

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 available for inspection 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 applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles Harmon, Acting Director

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