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HQ 965880




December 20, 2002

CLA-2 RR:CR:TE 965880 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6101.30.2010

Ms. Stacy L. Weinberg
Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP
245 Park Avenue
33rd Floor
New York, New York
10167-3397

RE: Pullover or Other Article; Jacket or Similar Garment; Textile and Apparel Guidelines; Apparel Terminology Under the HTSUS; Designed to be Final Layer Garment; Offers Level of Protection From the Elements Provided by Garments of Heading 6101, HTSUS; Polyurethane Coated Lining; Subheading 6101.30.2010, HTSUSA.

Dear Ms. Weinberg:

The purpose of this correspondence is to respond to your request dated August 2, 2002. The correspondence in issue requested, on the behalf of your client, Acushnet Company, a binding classification ruling of the merchandise described by the importer as a “Men’s Performance Fleece Golf Jacket.”

This ruling is being issued subsequent to the following: (1) A review of your submission dated August 2, 2002; (2) An examination of the sample “Dry Joys by Foot Joy” “Performance Fleece Pullover,” Style number: 34736, Medium, M100-M, submitted with the ruling request; (3) A review of the marketing literature / hang-tags attached to the sample; (4) A review of the single page of marketing literature provided directly to Customs by Acushnet; (5) An examination of Customs laboratory report dated October 1, 2002; and (6) A telephone conference conducted on October 11, 2002, during which Acushnet was represented by counsel and its apparel vice president.

FACTS

The article in issue, identified as “Dry Joys by Foot Joy” “Performance Fleece Pullover,” Style number: 34736, Medium, M100-M, is a men’s upper body garment.

The outer shell is constructed from a lightweight one hundred percent polyester, finely knit, double-faced fleece fabric. The fabric is napped on the inside and the outside surfaces. The garment has a stand-up collar, a partial front opening with a seven (7) inch zipper closure and a covered placket with a snap at the neck. It is a long-sleeved garment with ribbed cuffs. The garment has a zippered pocket over the left chest, two slash pockets below the waist that have zipper closures and a tunnel elastic bottom.

The garment is lined with a one hundred percent nylon knit fabric. The lining is coated with polyurethane on the inner surface. Acushnet’s marketing literature advises that the garment is “100 % waterproof.”

One of the hang-tags describes the garment as composed of “Polartec® 100 Series Fabric” which offers “lightweight warmth with next-to-skin comfort and perspiration management.” The 100 Series fabrics are “[d]esigned to be the first layer in the Body Climate® System.” The “100 Series fabrics help maintain an even body temperature during athletic exertion while providing lightweight insulation.” The other hang-tag specifically notes that the “Performance Fleece Pullover allows for superior function in cool and windy conditions, perfectly suited for the game of golf.” The second hang-tag identifies the garment as “FJ Foot Joy QTRZP PER FLEECE P/O BLK” which translates to: “FJ Foot Joy Quarter Zip Performance Fleece Pullover Black.”

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described men’s upper body garment ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 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.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

The initial issue confronting the Customs Service in this ruling is the proper identification of the garment as either a jacket or similar garment, or a pullover or similar article. Counsel for Acushnet suggests that the garment is a jacket and properly classified in heading 6101, HTSUS. Heading 6101, HTSUS, provides for the classification of “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103.” The Explanatory Notes to heading 6101, HTSUS, provide that “[t]his heading covers a category of knitted or crocheted garments for men or boys, characterised by the fact that they are generally worn over all other clothing for protection against the weather.” (Emphasis added). Explanatory Note 61.01.

The Customs Service also examined heading 6110, HTSUS. Heading 6110, HTSUS, provides for the classification of “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” Explanatory Note 61.10 provides that heading 6110, HTSUS, “covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles).”

The initial responsibility of the Customs Service is to examine the plain meaning of the statutory text. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (Ct. Int’l Trade 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (Ct. Int’l Trade 1994). If the plain language of the heading establishes the clear and unambiguous intent of Congress, the classification inquiry at the heading level is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F. 3d 1375, 1379 (Fed. Cir. 1999). If the common and popular meaning of a tariff term is not ascertainable from the schedule, Customs may rely on its own understanding of the terms and may consult lexicographic and scientific authorities, dictionaries and other reliable sources. See generally Precision Specialty Metals, Inc. v. United States, 116 F. Supp. 2d 1350, 1362 (Ct. Int’l Trade 2000).

The Customs Service, when classifying factually ambiguous or hybrid garments, must initially determine the identity of the garment. Customs, in doing so, references a number of sources of information. The primary sources referenced in the preparation of this ruling letter, in addition to the Explanatory Notes, include the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (Nov. 23, 1988) and the Customs Service Informed Compliance Publication (ICP) What Every Member of The Trade Community Should Know About: Apparel Terminology Under the HTSUS (Nov. 2000).

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories 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.” HQ 956982 (Nov. 22, 1994). The Guidelines are not binding, but do assist Customs and the trade community in distinguishing different classes of garments. See HQ 956982.

The Guidelines with regard to determining whether a garment is an “Other coats, men’s and boys’” provide, in pertinent part, the following:

Three-quarter length or longer garments commonly known as coats, and other garments such aswaist 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.Garments in this category have a full or partial front opening, with or without a means of closure.

C) 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. They may be within the coat category if designed to be worn over another garment (other than underwear). 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:

Fabric weight equal to or exceeding 10 ounces per square yard. A full or partial lining.
Pockets at or below the waist.
Back vents or pleats. Also side vents in combination with back seams. Eisenhower styling.
A belt or simulated belt or elasticized waist on hip length or longer shirt-jackets. Large jacket / coat style buttons, toggles or snaps, a heavy-duty zipper or other heavy-duty closure, or buttons fastened with reinforcing threads for heavy-duty use. Lapels.
Long sleeves without cuffs.
Elasticized or rib-knit cuffs.
Drawstring, elastic or rib-knit waistband.

Note: On knit garments, items 10 and 11 count as one feature.

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. Many such garments will function as the upper part of leisure suits and will be placed in the categories for “suit-type coats.” Garments not possessing at least 3 of the listed features will be considered on an individual basis. (Emphasis added).

Acushnet states that the garment is designed to be worn over other outerwear garments, particularly a turtleneck, and suggests that it has more than three of the features associated with jackets set forth in the Guidelines. Counsel observes that the garment has Guideline features 2, 3, 10 and 11, a lining, pockets at or below the waist, ribbed cuffs and an elastic waistband. Customs notes that counsel has not accounted for the “Note” at the bottom of the shirt-jacket feature guidelines which states that “On knit garments, items 10 and 11 count as one feature.” The garment does, however, possess “at least three” of the listed jacket features. The question that must be addressed is whether designating the garment as a jacket for classification purposes is “ unreasonable” in light of its other features, how it is marketed and how it is worn. Customs notes that many knit garments have these jacket features and are not designated as jackets.

The Customs Service further referenced the Informed Compliance Publication What Every Member of The Trade Community Should Know About: Apparel Terminology Under the HTSUS. The Customs Modernization Act, Title VI of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), obligates the Customs Service to provide the public with improved information concerning the trade community’s rights and responsibilities under the Customs and related laws. Customs Informed Compliance Publications are one effort to fulfill that responsibility.

The ICP, Apparel Terminology Under the HTSUS, although provided for general information purposes only, represents the considered thought and expertise of Customs concerning the classification of apparel in Chapters 61 and 62 of the HTSUS. The definition of “jackets” is under the category for “Anoraks, windbreakers and similar articles (6101, 6102, 6113, 6201, 6202, 6210).” Anoraks, windbreakers, jackets and similar articles, according to the ICP, include:

[j]ackets, which are garments designed to be worn over another garment, for protection against the elements. Jackets cover the upper body from the neck area to the waist area, but are generally less than mid-thigh length. They normally have a full front opening, although some jackets may have only a partial front opening. Jackets usually have long sleeves. Knit jackets (due to the particular character of knit fabric) generally have tightening elements at the cuffs and at the waist or bottom of the garment, although children’s garments or garments made of heavier material might not need these tightening elements. This term excludes knit garments that fail to qualify as jackets because they do not provide sufficient protection against the elements. Such garments, if they have full-front openings, may be considered cardigans of heading 6110 (other). (Emphasis added).

“Pullovers” classifiable in headings 6110 and 6111, HTSUS, according to the ICP, are “upper body knit garments without a full length opening, which are pulled over the head and are not more specifically provided for elsewhere in chapter 61.”

The principle characteristics of the instant garment relevant to its designation as either a jacket or a pullover are: (1) Whether the garment is an “outerwear garment” “generally worn over all other clothing for protection against the weather;” and (2) Whether the level of protection from the elements afforded by the garment rises to that provided by the garments designated eo nomine in heading 6101, HTSUS. Guidelines; Explanatory Note 61.01. See also Apparel Terminology Under the HTSUS. It is the determination of the Customs Service that the Acushnet garment will generally be the wearer’s final outer garment and that the level of protection from the weather offered by the garment, primarily because of the polyurethane coated lining, rises to the level of warmth and protection afforded by garments of heading 6101, HTSUS. The Acushnet garment is, therefore, a “jacket.”

Significant to Customs determination in this matter is the fact that the garment has a lining that is coated with polyurethane. The lining alone is not determinative, but the fact that the lining is coated with polyurethane is most significant. The polyurethane coating on the lining of this garment adds an additional degree of protection from the elements that results in the level of weather protection rising to the level associated with garments of heading 6101, HTSUS. Although the Acushnet garment is similar in outward appearance to “pullovers” of heading 6110, HTSUS, the polyurethane coated lining results in a different garment, one that will be worn differently from similarly appearing garments that have no linings or only have non-coated linings.

Customs technical expert, the National Import Specialist of the National Commodity Specialist Division, advises this office that knit, half-zip garments, are distinct articles of commerce unique to knitwear and are understood within the apparel trade as “pullovers.” This office, valuing the technical expertise of the National Import Specialist, appreciates the fact that knit, half-zip garments are generally known as “pullovers.” This office only designates the Acushnet garment a “jacket” because the polyurethane-coated lining raises the level of weather protection afforded by the garment to that of heading 6101, HTSUS, garments and also alters the manner in which the garment will be worn.

The Acushnet garment, like overcoats, carcoats, capes, cloaks, anoraks, ski-jackets and windbreakers that are “generally worn over all other clothing for protection against the weather,” is designed to be the wearer’s final layer of clothing protection from the elements. See Explanatory Note 61.01. The Acushnet garment, similar to the garments designated eo nomine, that is by name, in heading 6101, HTSUS, will not likely be worn under another garment. Although the “Performance Fleece Pullover” may be worn next to the skin, as its lining is comfortable to the touch and the lining seams are finished in a manner that the garment would be comfortable, it is the conclusion of this office that such use would be fugitive.

The Customs Service decision to differentiate garments of heading 6101, HTSUS, from garments of heading 6110, HTSUS, on the basis of how the garments are worn is in conformity with the Explanatory Notes, the Guidelines and the Apparel Terminology Under the HTSUS Informed Compliance Publication. Jackets are outdoor garments because of the level of weather protection offered and the manner in which they are worn. Jackets offer greater warmth and protection from the elements than pullovers, will generally not be worn indoors and are usually the final garment of protection against the elements. See HQ 964203 (Dec. 4, 2000).

The Acushnet garment, in comparison to the garments enumerated in heading 6101, HTSUS, affords a comparable level of protection from the weather. Customs is aware that the fabric weight of the outer shell, according to Customs laboratory report, is only 5.12 ounces per square yard. This is significantly below the 10 ounces per square yard set forth as feature 1 in the Guidelines. Customs does not consider this fact alone definitive because it does not take into consideration the garment’s inner polyurethane-coated lining. The polyurethane coated lining of the instant garment provides the entire garment with a higher level of protection from the elements.

It is the determination of the Customs Service, based on the above analysis, that the “Dry Joys by Foot Joy” “Performance Fleece Pullover” is a “jacket.” It would not be “unreasonable,” utilizing the language of the Guidelines, to designate the garment a jacket. The garment is more accurately described as a “jacket” by the reasoning set forth in the Explanatory Notes, the Guidelines and the Informed Compliance Publication. The men’s upper body garment is, for the purposes of classification pursuant to GRI 1, a garment similar to those properly classified in heading 6101, HTSUS. Heading 6101, HTSUS, provides for the classification of “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103.”

Continuing the classification of the Acushnet “Performance Fleece Pullover,” the garment is classified in subheading 6101.30.2010, HTSUSA. Subheading 6101.30.2010, HTSUSA, provides for:

Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103:

Of man-made fibers:

Other:
Other,

6101.30.2010 Men’s.

The Customs Service notes, with regard to classifying the Acushnet garment, the applicability of Chapter 61, Note 9, HTSUS. 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 61, Note 9, HTSUS.

The cut of the Acushnet garment clearly indicates that it is designed to be worn by men. Since the garment is designed for men or boys, it is classified at the subheading level, pursuant to GRI 1, in subheading 6101.30.2010, HTSUSA.

HOLDING

The “Dry Joys by Foot Joy” “Performance Fleece Pullover,” Style number: 34736, Medium, M100-M, is classified in subheading 6101.30.2010, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is twenty eight and six-tenths (28.6) percent, ad valorem.

The textile quota category is 634.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest 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 for inspection at the local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.

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 the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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