CLA-2 CO:R:C:T 950116 HP
Ms. Patricia McCauley
District Director
U.S. Customs Service
1717 East Loop, Room 401
Houston, TX 77029
RE: Application for Further Review of Multiple Protests. Quilted
anoraks of plastics coated fabrics.
Dear Ms. McCauley:
This is in reply to your Memorandum PRO-2-H:C of August 6,
1991, transmitting documentation for sixteen (16) Protests and
Applications for Further Review, as follows. Please be aware
that this response is issued to your office in conjunction with
HRL 952958 of this date.
TABLE IN ORIGINAL
LISTING
PROTEST NUMBERS
FACTS:
The above-listed Protests were filed by Givens & Kelly, on
behalf of their client, on the classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of ski jackets. The liquidations have also been
protested by the importer's surety, which claimed that since the
entries were not liquidated within one year from the date of
entry, the resulting extensions were contrary to the provisions
of section 504, Tariff Act of 1930, as amended. Complying with
the surety's request, action on these Protests has been suspended
until the importer's Protests have been ruled upon. If
necessary, the surety's protests will be answered in a separate
document.
The protests involve a number of styles of men's and boys'
jackets entered under subheading 6201.93.3000, HTSUSA, as water
resistant woven anoraks and similar garments. After entry, many
samples were analyzed by the Customs Laboratory and tested in
accordance with the water resistance requirements of Additional
U.S. Note 2 to Chapter 62, HTSUSA. When the garments at issue
failed the aforementioned test (see, e.g., Laboratory Report
#5-90-10272-001 of January 26, 1990), the importer requested
classification under heading 6210, HTSUSA, as garments made up
of, inter alia, coated fabrics. This request was denied, and
counsel entered these Protests.
Counsel has submitted a chart covering the style numbers and
their applicable Protest numbers. We duplicate the consequential
information on the following page. The first numeral in the
Style designation indicates whether the style is men's (3XXX),
boys' (4XXX), or men's "Big & Tall" (5XXX). Styles bearing the
suffix MS or BU are made up of the same fabric as those of the
same number without any suffix. Style 4729 is made up of the
same fabric of Style 3729. Style 5X30 is made up of the same
fabric of Style 5X29. Style 3727 is made up of the same fabric
of Style 4727.
Style Numbers Sorted By Protest Number:
Protest Number Style Number
5301-0-000143 P3661
P3721
P4701
5301-0-000204 P3703
P3705
5301-0-000243 P4709
P4725
P4727
P4727
P5729
5301-0-000406 P3705
P3709
P3725
P3727
P3727MS
P3729
P3733
P4703
P4703
P4721
P4727
P4729
P4729MS
5301-0-000577 P3727A
P4727
P4727BU
P4727MS
P4729BU
P5729
T3741
5301-1-000066 P3729
P4701
5301-1-100196 P3709
P3721
P4709
P5730
5301-1-100634 T3741
5301-9-000682 P3729MS
ISSUE:
Whether the garments at issue are water resistant; if not,
are they made up of fabrics coated with plastics, as such fabrics
are defined by the HTSUSA?
LAW AND ANALYSIS:
Water Resistant
Although the importer has requested classification of all
garments at issue as water resistant, no documentation countering
the aforementioned Customs Laboratory Reports has been submitted.
It is appropriate, therefore, to reject importers's first claimed
classification, and proceed to the alternative.
Garments Classifiable in Heading 6210, HTSUSA
Quilted Garments - Styles P3661 & P3721
The Subheading Explanatory Note to Chapter 62, HTSUSA,
excludes from classification in heading 6210 articles made from
quilted textile products in the piece of heading 5811, HTSUSA.
The Explanatory Notes (EN) to the HTSUSA constitute the official
interpretation of the tariff 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 Explanatory Notes when
interpreting the HTSUSA. Counsel has argued that the above-cited
styles are not within the Explanatory Note's exclusion:
"[r]ather, they were made up of non-quilted piece goods, similar
to the other styles.... The quilting' did not occur until, and
as a part of, assembly." In HRL 087274 of September 17, 1990,
however, we held that notwithstanding the language of the
Explanatory Note, the principle of the Note requires extension of
the exclusion to all garments which are made up of quilted
fabrics, whenever such quilting takes place. Therefore,
irrespective of the above styles' potential coating, HRL 087274
would require that they are not classified in heading 6210,
HTSUSA.
In its June 25, 1992, submission, counsel argued that HRL
087274 was decided incorrectly. Specifically, counsel noted
that:
{1} excluding garments constructed of heading
5811 "quilted textile products in the piece"
from classification in heading 6210 is
required not by the Subheading Explanatory
Note (which merely aids us in interpreting the
HTSUSA), but by legal Note 2(a)(6) to Chapter
59. This Note states that irrespective of the
presence of a visible coating, textile
products of heading 5811 are excluded from
classification under heading 5903 as coated
fabrics. Since heading 6210 provides for,
inter alia, garments constructed of coated
fabrics of heading 5903, the exclusion from
heading 6210 of garments constructed of
fabrics excluded from heading 5903 is the only
logical result possible.
{2} the "virtually identical garments"
language in HRL 087274 is faulty, in that
Congress recognized, as evidenced by the
language of Note 2(a)(6) to Chapter 59, that
there are significant differences between non-
quilted coated fabrics and quilted coated
fabrics.
{a} The quilted look in ski jackets is
more a statement of style than a required
assembly process.
{b} Quilted textile products in the
piece are rarely used in garments, as
they are much harder to assemble and fit.
Quilting plain fabric during garment
assembly more economically provides the
"quilted" look.
{c} Quilted textile products in the
piece are made by piece goods
manufacturers. Garments quilted during
assembly are made by garment
manufacturers. Congress has a long
history, via higher tariffs and stricter
quotas, of protecting one domestic
industry over another.
We agree with counsel that HRL 087274 erred in holding that
the "principle" of the Explanatory Note outweighed its explicit
language. HRL 087274 has therefore been revoked in HRL 955466 of
this date. Accordingly, these two styles will be grouped with
the remaining fabrics below. To aid Customs field personnel in
distinguishing between "jackets quilted during assembly" and
"jackets made from quilted-in-the-piece' fabric" (hereinafter
"QIP fabric"), we are incorporating the following descriptions.
As always, statements by the importer as to when quilting takes
place may be considered as evidence of final classification.
Jackets Quilted During Assembly
These jackets are assembled of two components, an interliner
and a shell, one or both of these having been quilted as they are
assembled. The interliner and the shell are then sewn together
in an inside-out fashion to create a bag that is completely
sealed, except for a six inch section of the sleeve seam that is
left unsewn. These inside-out components are then reversed by
pulling the bag through the whole in the sleeve wall. The jacket
assembly is completed when six inches of "suture" stitches close
the hole in the sleeve and create the jacket's only readily
visible seam. The exposed suture stitches confirm that the
jacket has been quilted in assembly. A second indication is the
near symmetrical quilting stitches in the different jacket parts
(e.g., fronts and backs) that are often situated to match up
carefully where the two parts are joined.
Jackets Made From "Quilted-in-the-Piece" Fabric
The components of these jackets are cut from QIP fabric
(heading 5811, HTSUSA). The two stitches that are used to
assemble these components are indicators that one or more
components are QIP. These stitches appear on inside seams and
are either not readily visible (the "security" stitch), or are
totally invisible (the "overlock" stitch) when viewing the seam
from the outside shell side.
Security Stitch
A security stitch is applied on the inside of the
jacket to pierce, in turn, the first component's
interliner, its shell, and then the second components
shell and interliner. The security stitch serves to join
the components of the jacket. The stitch is hardly
visible when viewing the resulting seam from the outside
shell side of the jacket.
Overlock Stitch
An overlock stitch is designed to prevent unraveling
and is placed along the cut edges of the four or more
fabrics that have been sewn in place by the above-
described security stitch. The overlock stitch, which is
added parallel to the security stitch, neatly wraps the
cut edges of the four fabrics and keeps those edges from
fraying. The overlock stitch is visible only when one
views the seam from the inside of the jacket.
Remaining Garments
Heading 6210, HTSUSA, provides for, inter alia, garments
made up of fabrics classifiable in heading 5903, HTSUSA. Heading
5903, HTSUSA, provides for classification of textile fabrics
impregnated, coated, covered or laminated with plastics, other
than tire cord covered by Heading 5902. Note 2 of Chapter 59,
HTSUSA, provides, in pertinent part:
Heading No. 59.03 applies to:
(a) Textile fabrics, impregnated, coated,
covered or laminated with plastics, ... other
than:
(1) Fabrics in which the impregnation,
coating or covering cannot be seen with
the naked eye (usually Chapters 50 to 55,
58 or 60); for the purpose of this
provision, no account should be taken of
any resulting change of colour; * * *
The wording of Note 2(a)(1) ("cannot be seen with the naked
eye") is a clear expression by the drafters of the Harmonized
System that a significant, if not substantial, amount of material
must be added to a fabric for it to be considered impregnated,
coated, covered or laminated. The plastics material added to the
fabric must be visibly distinguishable from that fabric without
the use of magnification. Any change in the "feel" of the
material is not taken into account. In essence, the plastics
coating must alter the visual characteristic of the fabric in
order for the fabric to be considered coated with plastics.
Applying the statutory test to the submitted samples, using
normally corrected vision in a well lighted room, we have come to
the following conclusions. Garments whose fabrics styles are
considered coated are classifiable in subheading 6210.40.1020;
those of uncoated fabrics are appropriately placed in subheading
6201.93.3510, HTSUSA, if men's, or 6201.93.3520, HTSUSA, if
boys'.
TABLE IN ORIGINAL
LISTING FINDINGS OF
VISIBLY COATED
HOLDING:
As a result of the foregoing, the instant merchandise is
classified as follows:
Styles P5729, P3721, P3661, P4727, P4727BU, P4727MS, P4721,
P3725, P3729MS, P3727, P3727A, P3727MS, P4725, P4729BU,
P4729MS, P5730
... under subheading 6210.40.1020, HTSUSA, textile category
634, as garments, made up of fabrics of heading 5602, 5603,
5903, 5906 or 5907, other men's or boys' garments, of
man-made fibers, other, anoraks (including ski-jackets),
windbreakers and similar articles. The applicable rate of
duty is 7.6 percent ad valorem.
Styles P4701, P3703, P3733, T3741, P3705, P3709, P4703, P4709
... if men's, under subheading 6201.93.3510, 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 (including
padded, sleeveless jackets), of man-made fibers, other,
other, other, other, men's. The applicable rate of duty is
29.5 percent ad valorem.
... if boys', under subheading 6201.93.3520, 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 (including
padded, sleeveless jackets), of man-made fibers, other,
other, other, other, boys'. The applicable rate of duty is
29.5 percent ad valorem.
The Protests should be granted or denied as follows:
Protest Number Style # . Results of Style #. . . . . Disposition
of Protest
5301-0-000143. P3661 . . Coated. . . . . . Denied in Part
. . P3721 . . Coated. . and Granted in
. . P4701 . . Uncoated. Part
5301-0-000204. P3703 . . Uncoated. . . . . Denied in Full
. . P3705 . . Uncoated.
5301-0-000243. P4709 . . Uncoated. . . . . Denied in Part
. . P4725 . . Coated. . and Granted in
. . P4727 . . Coated. . Part
. . P5729 . . Coated. .
5301-0-000406. P3705 . . Uncoated. . . . . Denied in Part
. . P3709 . . Uncoated. and Granted in
. . P3725 . . Coated. . Part
. . P3727 . . Coated. .
. . P3727MS . . . Coated. .
. . P3729 . . Coated. . . . . . Denied in Part
. . P3733 . . Uncoated. and Granted in
. . P4703 . . Uncoated. Part
. . P4721 . . Coated. .
. . P4727 . . Coated. .
. . P4729 . . Coated. .
. . P4729MS . . . Coated. .
5301-0-000577. P3727A. . . . Coated. . . . . . Denied in Part
. . P4727 . . Coated. . and Granted in
. . P4727BU . . . Coated. . Part
. . P4727MS . . . Coated. .
. . P4729BU . . . Coated. .
. . P5729 . . Coated. .
. . T3741 . . Uncoated.
5301-1-000066. P3729 . . Coated. . . . . . Denied in Part
. . P4701 . . Uncoated. and Granted in
Part
5301-1-100196. P3709 . . Uncoated. . . . . Denied in Part
. . P3721 . . Coated. . and Granted in
. . P4709 . . Uncoated. Part
. . P5730 . . Coated. .
5301-1-000634. T3741 . . Uncoated. . . . . Denied in Full
5301-9-000682. P3729MS . Coated. . . . . . . . Granted in Full
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations &
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, Lexis , Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director