CLA-2 CO:R:C:G 083536 HP
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Ave.
New York, NY 10017
RE: Classification of water-resistant garments
Dear Ms. Kelly-Kobayashi:
This is in reply to your letter of December 9, 1988,
concerning the tariff classification of men's and women's jackets,
produced in Korea, for your client Pacific Trail, Inc., under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The merchandise at issue consists of six styles of men's and
women's jackets, described by you as indicated. Random sampling
by our office demonstrates that all styles except LM2608 reach to
below mid-thigh. Any designation as "parka" or "anorak" in the
"FACTS" segment has been taken verbatim from your ruling request;
the terms are not defined for classification purposes until the
"LAW AND ANALYSIS" segment of this ruling letter.
1. Style LM2608 is a ladies' parka extending to mid-thigh.
The outer shell consists of 65 percent polyester and 35
percent cotton. It has a full front opening secured by
a two-way zipper that is covered by a snapped flap. It
includes a drawstring hood that snaps off, two front
cargo pockets with flaps secured by hook and loop tape,
two slanted pockets at the chest, adjustable wrists, and
a drawstring at the waist. The nonquilted lining is
composed of 100 percent acrylic in the body, and 100
percent nylon in the sleeves. The filling consists of
100 percent polyester.
2. Style G2622 is a girl's parka that has a full front two-
way zipper opening that is covered by a snapped flap.
It is approximately fingertip length. The jacket has two
front cargo pockets secured by snapped flaps. The wrists
have snaps to adjust the fit of the garment. The jacket
has an attached hood with a drawstring closure. The
outer shell is of 65 percent polyester and 35 percent
cotton. The quilted lining is composed of 100 percent
cotton in the body and 100 percent nylon in the sleeves.
The filling is 100 percent polyester. The jacket is
imported with a knitted acrylic fringed scarf that
matches the pattern used in the lining.
3. Style LM2600 is a ladies' nylon parka, approximately
fingertip in length. The shell is 100 percent
lightweight nylon. It has a full front opening secured
by a two-way zipper that is covered by a flap to provide
additional warmth. There is a drawstring at the waist
as well as at the lower edge to adjust the fit and
provide additional warmth. The garment has two slash
pockets secured by snapped flaps that are located below
the waist. It also has a hood secured by a drawstring,
and elasticized wrists. The nonquilted lining consists
of 100 percent cotton in the body and 100 percent nylon
in the sleeves.
4. Style LM2605 is a ladies' parka, approximately fingertip
in length, of 65 percent polyester and 35 percent cotton.
It has a full front two-way zipper opening and
elasticized cuffs. The nonquilted lining consists of 100
percent acrylic and 100 percent nylon in the sleeves.
A fringed scarf composed of 100 percent acrylic fabric,
and matching the pattern used in the lining of the coat,
is imported along with the garment. A hang loop located
in the rear panel directly below the shoulder holds the
scarf when the garment is not in use.
5. Style LM2654 is a ladies' jacket, with a full front
opening secured by a two-way zipper. It is approximately
fingertip in length. There is a flap covering the zipper
that is secured by snaps. The jacket has slash pockets
in the front and an attached drawstring hood. There is
another drawstring at the lower edge. The outer shell
is composed of 65 percent polyester and 35 percent
cotton. The quilted lining consists of 100 percent
cotton in the body and 100 percent nylon in the sleeves.
6. Style M2485 is a man's parka that is composed of 65
percent polyester and 35 percent cotton. It has a full
front two-way zipper opening covered by a snapped flap.
The garment is approximately fingertip in length. The
quilted lining consists of 100 percent acrylic in the
body and 100 percent nylon in the sleeves. It features
a drawstring hood that zips off and a drawstring at the
waist to adjust the fit of the garment. The jacket has
four cargo pockets with flaps secured by snaps, and cuffs
that have hook and loop closures.
ISSUE:
Are the instant garments considered parkas and similar
garments, or anoraks and similar garments, for classification
purposes under the HTSUSA?
LAW AND ANALYSIS:
Subheadings 6201.11 through 6201.19, HTSUSA, provide for men's
or boy's overcoats, carcoats, capes, cloaks and similar coats.
Subheadings 6201.91 through 6201.99, HTSUSA, provide for men's or
boy's anoraks (including ski jackets), windbreakers and similar
articles. Heading 6202 provides similar breakouts for women and
girls. Classification, therefore, must rely upon the material the
garments are composed of for HTSUSA purposes, and the differentia-
tion between parka-type garments and overcoat-type garments.
Material Composition
The Explanatory Notes (EN) to the HTSUSA constitute the
official interpretation of the tariff at the international level.
The General Explanatory Note to Chapter 61 states:
The classification of goods in [this] Chapter
is not affected by the presence of parts or
accessories of, for example, woven fabrics,
furskin, feather, leather, plastics or metal.
Where, however, the presence of such materials
constitutes more than mere trimming the
articles are classified in accordance with the
relative Chapter Notes . . . or failing that,
according to the General Interpretative Rules.
The EN for Chapter 62 contain a corresponding provision,
except that "knitted or crocheted" is substituted for "woven."
Accordingly, goods of Chapters 61 and 62 with relatively
insignificant linings, shoulder pads, pockets, etc., of the
materials noted, should be classified according to Subheading Note
2(A) to Section XI, HTSUSA (chief weight), without considering
those trimmings. Where, however, those goods have parts or
accessories that contribute materially to their character or
usefulness (for example, heavy weight linings which provide a
substantial degree of warmth to the wearer), then they must be
considered along with the outer shells and other significant
portions in determining the proper classification of those goods.
In this situation, it is appropriate to utilize Subheading Note
2(B)(a) of Section XI, HTSUSA.
Subheading Note 2 to Section XI, HTSUSA, provides, in
pertinent part:
(A) Products of chapters 56 to 63 containing
two or more textile materials are to be
regarded as consisting wholly of that textile
material which would be selected under note 2
to this section for the classification of a
product of chapters 50 to 55 consisting of the
same textile materials.
(B) For the application of this rule:
(a) Where appropriate, only the
part which determines the
classification under general
interpretative rule 3 shall be taken
into account.
Note 2(A), Section XI, to which Subheading Note 2(A) refers,
provides:
Goods classifiable in chapters 50 to 55 or in
heading 5809 or 5902 and of a mixture of two
or more textile materials are to be classified
as if consisting wholly of that one textile
material which predominates by weight over
each other textile material.
In applying the Section Note, we have stated that:
Subheading Note 2(A) is dependent on the
application of Section XI Note 2(A). The
subheading note states that the classification
of textile garments and articles will be
governed by the textile material selected
under the section note. However, the section
note is directed towards the classification of
yarns and fabrics which are a "mixture" of two
or more textile materials. According to the
Harmonized Commodity Description and Coding
System, Explanatory Notes, at page 705 ...,
textile materials may be mixed:
-prior to or during spinning;
-during twisting;
-during weaving.
Accordingly, the mixture of textile
materials contemplated in the section note is
not a mixture of two or more separate fabrics.
Before the subheading note, which is
predicated on the section note, can be
utilized, it must first be determined to which
of the fabrics comprising the article the
section note (and, therefore, the subheading
note) applies.
The garment[s] in question [are] made of
[several] fabrics. If those fabrics were
imported together in fabric form, Section XI
Note 2(A) would not require that the weights
of their components be compared and that
classification be according to the textile
material which predominates. Rather, they
would be classifiable as separate fabrics.
Therefore, where separate fabrics are combined
to form a textile garment or article [as in
the instant matter], GRI 3 is utilized first
to select which fabric [(and which part of the
garment that fabric comprises)] will determine
classification.
HRL 084012 PR of June 12, 1989.
Accordingly, where the instant garments contain parts or
accessories that materially contribute to their character or
usefulness, those parts or accessories must be considered along
with the outer shell in determining the applicable classification.
Following Subheading Note 2(B)(a) to Section XI, GRI 3 is consulted
to determine which portions of the garment are to be considered in
applying Subheading Note 2(A).
Garment Differentiation
A recent Headquarters Ruling Letter addressed the parka/anorak
issue. In HRL 081134 DSN of April 27, 1989, we held that for
classification under the HTSUSA:
... we are distinguishing parka-type garments
from anoraks. Parka-type garments are
classifiable under the provisions for
overcoats, car-coats, capes, cloaks and
similar articles, not under the provisions for
anoraks (including ski-jackets) and similar
articles. In order for a garment to be
considered a parka, it must have a hood, a
complete opening at the front fastened by a
zipper or a Velcro-like fastener, with or
without a protective flap; a lining either
quilted or of simulated fur fabric; a
drawstring or other tightening device at the
waist, except a belt, and outer pockets. The
length of the parka may vary from mid-thigh to
knee.
Anoraks have many features in common
with parkas; however, they differ in regards
to the length of the garment. The length of
an anorak can vary from waist length to mid-
thigh only. Anoraks must have a hood which
can be concealed in the collar; a complete
opening at the front fastened by a zipper or
velcro [sic.]; a lining quilted or padded, a
drawstring or other means of tightening;
close-fitting elasticized sleeve-ends; collar
and pockets. If the length of the garment is
longer than mid-thigh and yet has the features
described above, it will nevertheless be con-
sidered a parka and classifiable under the
provisions for overcoats, car-coats, capes,
cloaks and similar articles. [Emphasis
added.]
The term "similar articles" in relation
to anoraks, includes garments which have the
features of an anorak except for either a hood
or a lining. These similar articles include
garments defined as anoraks which have only a
partial opening and fastening device at the
front.
You contend that we erred in differentiating between parkas
and anoraks solely on the basis of garment length. You claim that
if the instant garments are not themselves anoraks, they are
ejusdem generis with the exemplars listed the subheading covering
anoraks, and must be classified therein.
In applying the rule of ejusdem generis to determine whether
an item is embraced within a particular class, the courts have
looked to the articles enumerated within that class to ascertain
the characteristics they have in common. Kotake Co., Ltd. v.
United States, 58 Cust. Ct. 196, C.D. 2934 (1967). The Explanatory
Note to heading 6101, HTSUSA, which applies, mutatis mutandis, to
the articles of headings 6102, 6201 and 6202, includes in these
headings several garments, including three-quarter coats, trench
coats, parkas and padded waistcoats, "characterized by the fact
that they are generally worn over all other clothing for protection
against the weather." The Explanatory Note, however, does not
distinguish between overcoats and similar garments, and anoraks and
similar garments.
It is our opinion that parkas have in common many of the
characteristics of anoraks. Like anoraks, parkas are worn by those
engaging in outdoor winter sports, or by those who prefer casual
styled outerwear. This distinguishes parkas and anoraks from
overcoats, carcoats, storm coats, etc., which are normally cut long
and full to fit over a sports jacket, suit, dress, etc. While
length alone may be sufficient to view parkas as garments
commercially distinct from anoraks, length alone is NOT sufficient
to classify parkas outside the purview of the subheading for
anoraks and similar garments. Therefore, while the characteristics
for anoraks and parkas we developed in HRL 081134 are still valid,
identifying a garment as a parka will now place classification
under the subheading for garments similar to anoraks. In this
respect, HRL 081134 of June 12, 1989, is hereby revoked.
The Garments at Issue
Style LM2608
This garment does not have a padded or quilted lining, thereby
disqualifying it from anorak consideration. It is our opinion that
the adjustable sleeves satisfy the requirement for close-fitting
elasticized sleeves established in HRL 081134. The Velcro-like
fastening serves the same purpose as an elastic band would, and the
garment would appear incomplete without the wrist fasteners
attached. The requirements for anoraks and similar articles, are
therefore modified to incorporate Velcro-like adjustable sleeve-
ends as alternatives to close-fitting elasticized sleeves. As a
result, the garment is classifiable, under the definition developed
in HRL 081134, as an anorak and similar article. The outer shell
of 65 percent polyester and 35 percent cotton, considered of poly-
ester under Subheading Note 2(A), supra, imparts the essential
character of the garment.
Style G2622
This garment is missing a drawstring or other tightening
device at the waist. It is our opinion, however, that to exclude
this garment from the class "anoraks and similar articles" merely
because of a missing tightening mechanism at the waist is contrary
to the essential nature of these garments. Therefore, the
definition of anoraks and similar garments is modified to include
garments with the features of anoraks except for a tightening
device at the waist. As a result, this garment is classifiable as
an article similar to anoraks.
Essential Character of the Garment
The General Rules of Interpretation (GRIs) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
... classification shall be determined
according to the terms of the headings and any
relative section or chapter notes ....
Goods which cannot be classified in accordance with GRI 1 are to
be classified in accordance with GRIs 2 through 4, taken in order,
and then GRIs 5 and 6.
GRI 3 states, in pertinent part:
When by application of Rule 2(b) [goods of
more than one material or substance] or for
any other reason, goods are, prima facie,
classifiable under two or more headings, clas-
sification shall be effected as follows:
***
(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) [which requires that goods be
classified, if possible, under the
more specific of the competing
provisions], shall be classified as
if they consisted of the material or
component which gives them their
essential character, insofar as this
criterion is applicable.
The factors which determine the essential character of an
article vary from case to case. Essential character may be
derived from the nature of the materials or components, the
material's or component's bulk, quantity, weight, value, or the
role played in relation to the use of the goods. In general,
essential character has been construed to mean the attribute which
strongly marks or serves to distinguish what an article is; that
which is indispensable to the structure or condition of an
article.
Although the heavy cotton lining in the body of the garment
adds a desirable feature to the garment (i.e., keeping the wearer
warm), it is the outer shell which plays the pivotal roles in the
utilization of the garment: it creates the garment and acts as a
defense against moisture seepage. Therefore, the essential
character, as determined under GRI 3(b), is imparted by the outer
shell, considered of polyester under Subheading Note 2(A), supra.
Scarf-Coat Combination
The Explanatory Note to GRI 3(b) provides:
(X) For the purposes of this Rule, the
term "goods put up in sets for
retail sale" shall be taken to mean
goods which:
(a) consist of at least two
different articles which
are, prima facie,
classifiable in different
headings.
* * *
(b) consist of products or
articles put up together
to meet a particular need
or carry out a specific
activity; and
(c) are put up in a manner
suitable for sale directly
to users without
repacking....
It is our opinion that the instant coat and scarf form a
garment and accessory put up in a set for retail sale. Clearly,
the essential character of this set is imparted by the coat.
Therefore, the set is classifiable based upon the coat.
Style LM2600
This garment satisfies all the above-stated requirements for
a parka, and would be classifiable as an anorak and similar
article, except that the garment is missing a quilted/padded
lining. In describing articles similar to anoraks, the Addendum
1988 to the Explanatory Notes to the Combined Nomenclature of the
European Communities (Comm'n of the European Communities) ("Adden-
dum") notes that
[g]arments which would otherwise be covered by
the term "anoraks (including ski-jackets) and
similar articles" but have neither a hood nor
a lining could however be covered by the term
"and similar articles" when this is used in
relation to the term windcheaters. [Emphasis
added.]
We agree with this distinction. Therefore, the garment is
classifiable as an anorak and similar article. The outer shell of
nylon imparts the essential character of the garment.
Style LM2605
The instant coat and scarf form a garment and accessory put
up in a set for retail sale, as we stated in the discussion
concerning Style G2622, with the coat clearly imparting the
essential character. Therefore, the set is classifiable based upon
the coat.
This garment is missing a hood, a tightening device at the
waist, and a quilted or padded lining. As we do not find waist
tightening mechanisms mandatory with respect to windcheater-type
garments, this garment is classifiable as an anorak and similar
article, when used in relation to the term windcheaters. The outer
shell of 65 percent polyester and 35 percent cotton, considered of
polyester under Subheading Note 2(A), supra, imparts the essential
character of the garment.
Style LM2654
This garment satisfies all requirements for a parka, and is
classifiable as an anorak and similar article. Although the heavy
cotton lining in the body of the garment adds a desirable feature
to the garment (i.e., keeping the wearer warm), it is the outer
shell which plays the pivotal roles in the utilization of the
garment: it creates the garment and acts as a defense against
moisture seepage. Therefore, the essential character, as deter-
mined under GRI 3(b), is imparted by the outer shell, considered
of polyester under Subheading Note 2(A), supra.
Style M2485
This garment satisfies all requirements for a man's parka, and
is classifiable as an anorak and similar article. Although the
heavy acrylic lining in the body of the garment adds a desirable
feature to the garment (i.e., keeping the wearer warm), it is the
outer shell which plays the pivotal roles in the utilization of the
garment: it creates the garment and acts as a defense against
moisture seepage. Therefore, the essential character, as deter-
mined under GRI 3(b), is imparted by the outer shell, considered
of polyester under Subheading Note 2(A), supra.
HOLDING:
You state that the instant merchandise is considered water
resistant in accordance with AATCC Test Method 35-1985, as required
by Additional U.S. Note 2 to Chapter 62, HTSUSA. For the purposes
of this ruling letter, we assume this to be correct.
As a result of the foregoing, the instant merchandise is
classified as follows:
Style M2485, under subheading 6201.93.3000, HTSUSA, textile
category 634, as 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 (included padded, sleeveless jackets), of man-made fibers,
other, other, other, water resistant. The applicable rate of duty
is 7.6 percent ad valorem.
All Other Styles, under subheading 6202.93.4500, HTSUSA, as women's
or girls' overcoats, carcoats, capes, cloaks, anoraks (including
ski-jackets), windbreakers and similar articles (including padded,
sleeveless jackets), other than those of heading 6204, anoraks
(including ski-jackets), windbreakers and similar articles
(including padded, sleeveless jackets), of man-made fibers, other,
other, other, water resistant. The applicable rate of duty is 7.6
percent ad valorem. All coats require a visa in textile category
635. The scarves for Styles G2622 and LM2605 require visas in
textile category 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 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 your local
Customs office prior to importing the merchandise to determine the
current applicability of any import restraints or requirements.
Pursuant to section 177.9, Customs Regulations (19 C.F.R.
177.9), HRL 081134 of April 27, 1989 is revoked in conformity with
the foregoing.
Sincerely,
Harvey Fox, Director
Office of Regulations and Rulings