CLA-2 CO:R:C:G 084077 PR; NY 838442
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Classification of Reversible Jackets
Gentlemen:
This ruling is in response to your letter and memorandum of
March 10, 1989, on behalf of Bradley Imports, Inc., concerning a
ruling of December 1, 1988 (NYRL 833200) from our area Director,
New York Seaport, concerning the tariff status of two reversible
girls' jackets.
FACTS:
No samples were received by this office. The garments in
question are described in NYRL 833200 as girls' reversible
jackets, each with an outer woven shell of 65 percent polyester
and 35 percent cotton, with no plastics applied to it. The other
outer shell on each garment consists of a knit tricot fabric
coated with nontransparent plastics which obscures the
underlying fabric.
The garments were determined to be classifiable under
the provision for knitted girls' jackets made up of fabrics of
Heading 5903, having an outer surface impregnated, coated,
covered, or laminated with plasticS material which completely
obscures the underlying fabric, in Subheading 6113.00.0010,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). The Area Director now believes that NYRL 833200 was in
error and has requested that the ruling be modified.
ISSUE:
The issue presented is whether the classification of the
garments in NYRL 833200 is correct, or whether, since the
garments each have more than one outer shell, they should be
classified elsewhere under Heading 6113.
LAW AND ANALYSIS:
Although a number of issues have been raised by both the
importer's representative and by our Area Director, it appears
that the wording of the subheading itself resolves the matter.
The provision reads:
Having an outer surface impregnated, coated, covered, or
laminated with rubber or plastics material which completely
obscures the underlying fabric. (bolding added)
The use of the phrase "an outer surface" clearly negates any
necessity that both outer surfaces of reversible garments must
meet the requirement that the underlying fabrics be obscured by
rubber or plastics material.
In the absence of clear and convincing evidence to the
contrary, the common meaning of words must prevail. United
States v. Rembrandt Electronics, Inc., 64 CCPA 1, C.A.D. 1175
(1976). While the language of the Subheading 6113.00.0010 may be
similar to that contained in Headnote 5(a), Schedule 3, of the
Tariff Schedules of the United States Annotated (TSUSA), which
has been superceded by the HTSUSA, Headnote 5(a) used the phrase
"the outer surface . . . or the only exposed surface . . ." A
change in statutory language imports a change in meaning unless
the contrary is made plainly apparent. Fynaut & Popek v. United
States, 23 CCPA 265, T.D. 48112 (1936) Where the intent of
Congress is apparent, rules of construction may not be employed
to circumvent that intent, Esco Mfg. Co. v. United States, 63
CCPA 71, C.A.D. 1167 (1976),and the creation of an ambiguity in
an otherwise clear and unambiguous statute by reference to
legislative history is improper. United States v. Corning Glass
Works, 66 CCPA 25, C.A.D. 1216 (1978).
However, in this instance, while it may be assumed that
there was an intention to continue the same tariff treatment
under the HTSUSA for reversible garments of the type here
presented, there is no evidence of what Congress intended when
enacting Subheading 6113.00.0010. Furthermore, it is unimportant
that a particular application of a statute may not have been
contemplated by the legislators. Barr v. United States, 324 US
83, 90 (1945); 62 CCPA 10, C.A.D. 1136 (1974).
HOLDING:
Based on the descriptions contained in NYRL 833200, the
garments which were the subject of that ruling were correctly
classified in Subheading 6113.00.0010, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division