CLA-2 CO:R:C:T 956318 CAB
District Director
U.S. Customs Service
6747 Engle Road
Middleburg Heig, OH 44130-7939
RE: Request for Further Review of Protest No. 4103-93-100007,
dated December 30, 1992; Classification of upper body garment;
jacket vs. blouse; Heading 6202; Heading 6211
Dear Sir:
This is response to the protest that was timely filed by
Grunfeld, Desiderio, Lebowitz, & Silverman, on behalf of Lerner
Stores, Inc., whereby they dispute the tariff classification of a
woman's upper body garment under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA). A sample was submitted for
examination.
FACTS:
The garment at issue is referred to as Style 2990. Style 2990
is a woman's upper body garment constructed of 100 percent silk
fabric. The garment is unlined, extends to the mid-thigh area,
contains shoulder pads, a notched collar, a rear yoke, long sleeves
with button cuffs, a full frontal opening with flap and button
closures, two slant pockets below the waist, and a drawstring means
of closure at the waist with plastic cord stoppers.
Initially the subject merchandise was entered under subheading
6204.39.6000, HTSUSA, which provides for women's suit-type jackets
containing 70 percent or more by weight of silk or silk waste.
However, in the protest claim, the protestant contended that the
merchandise was properly classifiable under Heading 6202, HTSUSA,
which provides for 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. The District Director of Customs in Ohio
determined that the subject merchandise was properly classifiable
under Heading 6211, HTSUSA, which provides for track suits, ski-
suits and swimwear; other garments.
ISSUE:
Whether the subject garment is classifiable under Heading
6202, HTSUSA, as a windbreaker or similar garment, or in Heading
6211, HTSUSA, as an other garment?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
The instant garment is possibly classifiable under two
distinct headings. As stated above, the possible headings are
Heading 6202, HTSUSA, which provides for, among other garments,
anoraks, windbreakers and similar articles and Heading 6211,
HTSUSA, which provides for other garments. The importer contends
that the garment is properly classifiable as a "windbreaker-type
jacket". The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), although not legally binding,
are the official interpretation of the tariff at the international
level. The EN to Heading 6101, HTSUSA, which applies mutatis
mutandis, to the articles of Heading 6202, HTSUSA, state that the
garments of this heading are generally characterized by the fact
that they are generally worn over all other clothing for protection
against the weather. The instant garment is constructed of 100
percent silk fabric which is a lightweight material not generally
utilized for wear over other garments for protection against
inclement weather. The garment contains substantial shoulder pads
which are fashion embellishments not usually found in a windbreaker
style jacket. Finally, the overall appearance of the subject
garment including the cut, fit, and sueded material is not
indicative of a windbreaker or similar type jacket. Consequently,
Customs does not believe that the subject garment is classifiable
under Heading 6202, HTSUSA.
The importer refers to The Guidelines for the Reporting of
Imported Products in Various Textile and Apparel Categories, CIE
13/88 [hereinafter Textile Guidelines], to substantiate his claim
that the subject garment is classifiable as a windbreaker-type
jacket under Heading 6202, HTSUSA. The importer cites page 6 of
the Textile Guidelines which states that garments having features
of both jackets and shirts will be categorized as jackets if they
possess at least three of the listed features and if the result is
not unreasonable. The importer further maintains that Style 2990
possesses the following features which manifest its use as an
outer-garment: (1) a full frontal opening (2) long sleeves with
buttoned sleeve cuffs, (3) it extends from the upper body to below
the waist, (4) slanted pockets below the waist, (5) large
jacket/coat style buttons (6) a drawstring tightening at the
waist, and (7) two large front chest pockets with button closures.
It is important to note that the guidelines are not legally binding
and merely used as a guide in determining the proper commercial
designation and, thus the tariff classification among classes of
garments.
Usually Customs consults the Textile Guidelines when a garment
possesses features of more than one type of garment; this type of
garment is sometimes referred to as a hybrid. In this case there
is no indication that the garment at issue is a hybrid containing
shirt and jacket features. When examining the garment in its
entirety, it is clear that from its weight, styling, and fabric
make-up, that it is not a jacket-type garment. Therefore,
reference to the Textile Guidelines is unnecessary in this case.
As a result of the foregoing, the subject garment is classifiable
under Heading 6211, HTSUSA, as an other garment.
HOLDING:
At the time of entry, Style 2990 was properly classified in
subheading 6211.49.0010, HTSUSA, which is the provision for track
suits, ski-suits and swimwear; other garments, women's or girls',
containing 70 percent or more by weight of silk or silk waste. The
applicable rate of duty was 7.8 percent ad valorem and at that time
the merchandise was not subject to a textile restraint category.
The protest should be denied in full. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action.
In accordance with Section 3(A)(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 mailing of the decision. Sixty days from the
date of the decision the Office of Regulations and Rulings will
take steps to make the decision available to Customs personnel via
the Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division