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HQ 967926




January 3, 2006

CLA-2 RR:CR:TE 967926 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3500 or 6201.93.3511

Jeffrey O. Gregory
Design Resources, Inc.
8900 State Line Road
Suite 500
Leawood, KS 66206

RE: Classification of men’s polyester short-sleeved windshirt from Vietnam

Dear Mr. Gregory:

This is in reply to your letter dated August 29, 2005, to the National Commodity Specialist Division (“NCSD”) requesting classification of a men’s upper body garment identified by you as style number W5-025 under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Your letter and accompanying documentation regarding the garment was forwarded by the NCSD to this office for a reply.

FACTS:

In your letter and accompanying documentation, style number W5-025 is referred to as a short-sleeved men’s windshirt. It is constructed of 100% polyester, lightweight woven dobby fabric. The garment has a generous fit, a V-neck finished with rib knit edging and hemmed short-sleeves without rib knit edging. It also has zippered-entry side pockets and a tunnel elastic bottom at the waist. The accompanying documentation indicates that style number W5-025 is water-resistant. There is a coating which is not visible to the naked eye on the inside of garment’s polyester fabric. The garment is not lined. On the back of the garment, just below the neckline, there is an outline of a golfer and “ASHWORTH” is embroidered.

ISSUE:

What is the classification of style W5-025?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with 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." If 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, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

As a preliminary matter, we find the rib knit edging around the V-neck to constitute mere trimming which does not affect the classification of style W5-025. See generally General EN to Chapter 62. While decorative, the edging is not an integral component of the garment. As a result, the edging does not necessitate a GRI 3 analysis. See generally, Headquarters Ruling (HQ) 965303, dated September 9, 2002, and HQ 950007, dated October 4, 1991.

Heading 6201, HTSUSA, 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.” The EN to heading 6201, in pertinent part, state that the EN to heading 6101 apply, mutatis mutandis, to the articles of heading 6201. The EN to heading 6101, in turn, state that the heading covers a category of
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, trench coats, gabardines, parkas, padded waistcoats.

Heading 6205, HTSUSA, provides for: “Men’s or boys’ shirts.” The EN to heading 6205 state, in pertinent part, that heading 6205 “does not cover garments having the character of wind-cheaters, wind-jackets, etc. of heading 62.01, which generally have a tightening at the bottom .” Additionally, the EN to Chapter 62 provide in the general notes to the chapter: “[s]hirts and shirt-blouses are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline.”

CBP recognizes that garments may possess features of both shirts and jackets. CBP considers such garments to be “hybrid garments.” See generally HQ 967840, dated November 2, 2005, HQ 967188, dated January 28, 2005, and HQ 964181, dated April 4, 2001. We find the style at issue, style W5-025, to be one of these garments. When 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. Garments in this category have a full or partial front opening, with or without a means of closure. Coats have sleeves of any length. 

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 . 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 thread for heavy-duty use.

Lapels.

Long sleeves without cuffs.

Elasticized or rib-knit cuffs.

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, CIE 13/88 at 5-6 (Nov. 23, 1988) and the CBP Informed Compliance Publication (ICP) What Every Member of the Community Should Know About: Apparel Terminology Under the HTSUS, (Jan., 2004).

The Guidelines offer the following with regard to the classification of men’s or boy’s shirts, not knit:

These categories cover male outer garments which extend from the neck and shoulder areas to or below the waist. A shirt should have a full or partial front opening, which closes left side over right side. These garments are worn over underwear or the skin and are considered conventional attire indoors and outdoors without other garments over them; they suffice the wearer except where circumstances dictate that a further degree of formality is required or where weather conditions necessitate additional protection. Shirts may have sleeves or be sleeveless. Id. at 15.

In this case, style W5-025 has two of the listed features of a shirt-jacket, pockets at the waist and an elastic waistband. Under the Guidelines, therefore, the style must be considered on an individual basis.

In your letter, you refer to style W5-025 as a short-sleeved men’s windshirt. We find that style W5-025, specifically falls into the class of merchandise currently recognized as “golf performance windwear.” Manufacturers of golf apparel currently offer a variety of “windwear” garments, with less weight and bulk than traditional golf apparel, that protect against rain, wind, and cold while looking fashionable off course. See “The Latest in Windwear Offers Less Weight and Bulk,” July 16, 2003 and “Protect Against Wind and Rain In Style,” July 13, 2005, both by Chuck Stogel and posted on www.golfweb.com, the official website of the Professional Golf Association Tour. One veteran golf journalist compares this windwear to traditional golf apparel:

Although simple, lightweight jackets and traditional pullover sweaters still exist, the selection of serious windwear available today goes much further. Both tops and bottoms come in a variety of fabrics and color patterns; for tops, there are full zippers, half-zips and pullovers; long sleeves and short sleeves and vests; v-necks, crews, turtlenecks and mocks; waist and cuff cinches; cottons, fleece, Gore-Tex, Teflon; lined, unlined, and multi-layered. Id.

Based on this information, the construction of the garment, and your characterization of the garment, we find style W5-025 to be classified in heading 6201, HTSUSA. While you did not provide marketing material on the garment, based your characterization of the article, information in the accompanying documentation and advertising of substantially similar garments of other brands, we also believe style W5-025 will be marketed as an article of this nature.

The rationale for classification of the merchandise at issue in heading 6201, HTSUSA, as similar to articles of that heading, lies in the rule of statutory construction known as ejusdem generis. In Van Dale Industries v. United States, 18 CIT 247 (April 1, 1994), aff’d 50 F.3d 1012 (Fed Cir.) (1995), in discussing ejusdem generis the court affirmed that:

[o]ne rule of statutory construction is ejusdem generis, which means "of the same kind, class, or nature." Black's Law Dictionary 464 (5th ed. 1979). This rule applies whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named." [United States v. Damrak Trading Co., Inc., 43 CCPA 77, 79, C.A.D. 611 (1956).] Under ejusdem generis, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Id. In other words, ejusdem generis requires that merchandise possess the particular characteristics or purposes that unite the specified exemplars in order to be classified under the general terms. See, Nissho-Iwasi Am. Corp. v. United States, 10 CIT 154, 157, 641 F. Supp. 808, 810 (1986) (citations omitted).

As stated above, heading 6201, HTSUSA, provides for: “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles .” (Emphasis added). In this case, we must apply the legal principle of ejusdem generis to the articles described in heading 6201, HTSUSA, and compare the subject article to their characteristics and purpose. The court in Sports Graphics, Inc. v. United States, 24 F. 3d 1390, 1392 (Fed. Cir. 1994), affirmed this principle when it held that, “[a]s applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.”

The exemplars described in heading 6201, HTSUSA, are all worn over clothing for protection against the weather. These exemplars include a variety of garments which provide different levels of protection against various weather conditions. Some exemplars provide high levels of protection against severe weather conditions (like parkas and ski-jackets), while others provide less protection in less severe weather conditions (like wind-cheaters or wind-jackets). Some provide protection against cold, rain, wind, while others provide protection against only one of these conditions.

Style W5-025 does not protect against severe weather conditions. It protects only against foul weather conditions, specifically, wind and light rain. We find the protection afforded by style W5-025 to be akin to that of a windbreaker. Typical of a windbreaker, style W5-025 has pockets at the waist, an elastic waistband, and is made of coated polyester fabric that is common to windbreakers.

We recognize, however, that style W5-025 has features not associated with windbreakers of heading 6201, HTSUSA, including short-sleeves and a V-neck. Both of these features reduce the protection that the article provides against inclement weather, but make the garment more suitable for golf, with the sleeves allowing for unrestricted arm movement and the V-neck giving the garment a more dressy appearance. While we acknowledge that these features lessen the protection that the garment provides against inclement weather, we recognize that style W5-025, nevertheless, provides a degree of protection against wind and light rain. The garment will be also be worn for the same reasons as a windbreaker and we believe that the article will be marketed as affording protection from the wind and light rain. Note that CBP has previously classified similar “hybrid garments” (some specifically designed for golfers) under heading 6201, HTSUSA. See, e.g. HQ 967188, HQ 964181, HQ 957628, and HQ 956982, dated November 22, 1994. However, we emphasize that the classification of such garments proceeds on a case-by-case basis considering all available facts about the garment at issue.

Style W5-025’s features evidence that it will be worn over all other clothing. First, the article’s water-resistance is only effective as a barrier if the garment is worn as an outer layer. Second, the article’s zippered-entry side pockets are only accessible if the garment is worn as an outer layer. Third, the article’s V-neck suggests that the garment will be worn over another garment (possibly a collared shirt, which is customary in golf). Fourth, the garment’s generous fit also suggests that it will be worn as an outer layer.

In light of the above, we find that style W5-025 has the character of a windbreaker of heading 6201, HTSUSA. Like the articles enumerated eo nominee in heading 6201, HTSUSA, style W5-025 is worn over all other clothing for protection against the weather. As style number W5-025 is not more specifically described in any other heading, and is ejusdem generis to articles provided for in heading 6201, HTSUSA, it is provided for at GRI 1, under this heading.

Note that because style W5-025 has the character of a windbreaker of heading 6201, pursuant to the guidance in the EN to heading 6205, the garment is not prima facie classifiable under heading 6205, HTSUSA. Additionally, note that style W5-025 is not prima facie classifiable in heading 6211, HTSUSA, as a special article of apparel used for golf (falling under the “other garments” part of heading 6211, HTSUSA), because the garment will be worn off, as well as on, the golf course. See generally HQ 957469, dated November 7, 1995.

The accompanying documentation indicates that style W5-025 is water-resistant, but you have not submitted any additional information on this 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:

If style W5-025 passes the water resistance test specified in Chapter 62, U.S. Note 2, HTSUSA, then the applicable subheading for the garment will be 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 applicable column one, general duty rate under the 2006 HTSUSA will be 7.1% ad valorem. The applicable textile quota category under this subheading will be 634.

If style W5-025 does not pass the water resistance test specified in Chapter 62, U.S. Note 2, HTSUSA, then the applicable subheading for the garment will be 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 applicable column one, general duty rate under the 2006 HTSUSA will be 27.7% ad valorem. The applicable textile quota category under this subheading will be 634.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

Sincerely,

Gail A. Hamill, Chief

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