CLA-2 RR:CR:TE 964385 jsj
Mr. Samual J. Attias
S.A.S.C.O. Trading, Inc.
1359 Broadway
Suite 1808
New York, New York 10018
Re: Reconsideration of NY F83735; Subheading 3926.20.9050, HTSUSA; “Of Plastic” and “Of Fabric”; Textile Fabric Merely Reinforcing Plastic; Style Numbers: M30033, Y30333 and B30533.
Dear Mr. Attias:
The purpose of this correspondence is to respond to a request of the National Commodity Specialist Division of the Customs Service to reconsider New York Ruling Letter F83735. New York ruling letter F83735 was issued to S.A.S.C.O. Trading, Inc. on March 20, 2000. The articles in issue in NY F83735 were long-sleeve jackets style numbers M30033, Y30333 and B30533.
Pursuant to section 625 (c), Tariff Act of 1930, as amended, 19 U.S.C. 1625 (c), notice of the proposed revocation of NY F83735 was published on October 17, 2001, in the Customs Bulletin, Volume 35, Number 42. The Customs Service received no comments during the notice and comment period that closed on November 16, 2001. Customs, as the result of the disruption of mail service, waited two additional weeks until November 30, 2001 before proceeding with this reconsideration and revocation. No comments postmarked either before or after the close of the comment period were received.
This reconsideration and revocation is being issued subsequent to a review of the following: (1) NY F83735 (Mar. 20, 2000); (2) Customs Service laboratory report number: 2-2000-10588; (3) Correspondence of S.A.S.C.O. Trading, Inc. dated May 31, 2000; and (4) A sample identified with style numbers: M30033, Y30333 and B30533.
The Customs Service subsequent to reconsidering NY F83735 is revoking that ruling letter pursuant to the following analysis.
FACTS
Garment style M30033 is a long sleeve jacket with a quilted lining that falls below the waist of the wearer. A Customs laboratory report establishes that it is “composed knit fabrics which have been coated, covered or laminated on one surface with a polyvinyl chloride type of cellular plastics material.”
The jacket features a pointed collar and a full front zipper closure. The sleeve cuffs tighten through the use of a section of material that wraps over the wrist of the wearer and secures to the sleeve by means of a hook and loop fastener system.
The jacket features two slash pockets, one on each side of the garment below the waistline and a left breast zipper pocket. The breast pocket has a storm flap, but neither the slash pockets nor the front zipper closure have storm flaps. A small metal plate with the phrase “BRAVE ELTEND” is attached to the jacket immediately below the breast pocket.
S.A.S.C.O. Trading advises the Customs Service that, in addition to style M30033, it will import garments of identical material composition, but in different sizes, in styles Y30333 and B30533.
The Customs Service is advised that the country of origin of the garments is China.
ISSUE
What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described garments identified as style M30033, Y30333 and B30533 ?
LAW AND ANALYSIS
The United States Customs Service issued New York Ruling Letter F83735 on March 20, 2000, classifying men’s style M30033, big boy’s style Y30333 and little boy’s style B30533 in subheading 6113.00.1005, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). S.A.S.C.O. Trading subsequently contacted Customs by telephone and correspondence, and advised Customs that the garments in issue were constructed of the same material as the garments addressed in NY F83736 (Mar. 20, 2000). New York Ruling Letter F83736 classified styles M30013, Y30319 and B30513 in subheading 3926.20.9050, HTSUSA. The National Commodity Specialist Division, subsequent to receipt of S.A.S.C.O.’s additional inquiry, a sample garment of the material of styles M30033, Y30333 and B30533, and a Customs laboratory report, forwarded a request to Customs Headquarters seeking reconsideration of NY F83736.
The responsibility for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated rests with the U.S. Customs Service. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation.
General Rule of Interpretation 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.” General Rule of Interpretation 1. General Rule of Interpretation 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation. See General Rule of Interpretation 1.
Commencing classification of the garments style numbers M30033, Y30333 and B30533 in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. The initial issue to be resolved in classifying these garments at the heading level is to determine whether they are properly classified as articles “of knitted…fabrics” in heading 6113, HTSUSA, or articles “of plastics” in heading 3926, HTSUSA.
Customs specifically notes that the analysis at this stage of classifying the garments is analysis pursuant to GRI 1. The focus is on the terms of the headings and the section and chapter notes. Classification of the garments as being either “of knitted…fabrics” in heading 6113, HTSUSA, or “of plastics” in heading 3926, HTSUSA, will preclude classification in the other. Customs has not resorted to GRI 3 because the garments are either “of knitted…fabrics” or “of plastics” and, therefore, are not prima facie classifiable under two or more headings. See General Rule of Interpretation 3.
Heading 6113, HTSUSA, provides for “[g]arments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907.” Heading 5903, HTSUSA, provides for the classification of “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” The garments under consideration are composed of a one hundred percent man-made knitted fabric that has been coated, covered or laminated on the exterior surface with a polyvinyl chloride cellular plastic.
A review of the Chapter Notes to Chapter 59 further addresses the question of whether the jackets are properly classified in heading 6113, HTSUSA. Chapter 59, Note 2 states that heading 5903, HTSUSA, applies to “[t]extile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular).” Chapter 59, Note 2 (a), HTSUSA. Chapter 59 Note 2 (a) does, however, state exceptions to the general principle.
The Chapter Notes to Chapter 59 announce six exceptions to the general principle that heading 5903, HTSUSA, applies to textile fabrics, impregnated, coated, covered or laminated with plastics. The exception of relevance to the instant legal analysis is exception five. Chapter 59 Note 2 (a) (5) provides that “[p]lates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes” are properly classified in Chapter 39 rather than Chapter 59. (Emphasis added) Chapter 59, Note 2 (a) (5), HTSUSA.
The garments under consideration, as previously stated, are composed of cellular plastic. Since the plastic is cellular, the issue that must be resolved is whether the knitted textile fabric is present merely for reinforcing purposes.
It is the conclusion of the Customs Service that the textile fabric to which the plastic is coated, covered or laminated, is present merely to reinforce the plastic. The purpose of the fabric backing is to prevent the outer plastic shell from tearing or stretching. See HQ 085100 (Sept. 11, 1989). The textile fabric is not present for more than the purpose of reinforcing the plastic outer shell. Cf. HQ 086358 (June 19, 1991) (textile substrate provides comfort to the wearer of gloves and prevents trapping of perspiration); HQ 088207 (June 4, 1991) (textile component of candy box provides decorative and consumer appeal resulting in article being considered to be made of textile material rather than of plastics); See also General Explanatory Notes, Chapter 39, Plastics and textile combinations (providing that plastics and textile combinations are essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59, and that plates, sheets and strip of cellular plastics combined with textile fabric where the textile is present merely for reinforcing purposes are products covered by Chapter 39).
Application of the chapter notes to Chapter 59, applied though the analysis of heading 6113, HTSUSA, instructs Customs that the garments are considered to be “of plastic” rather than being “of knitted…fabrics.” The garments are, therefore, properly classified in Chapter 39, HTSUSA. The heading, pursuant to GRI 1, that provides for the classification of the merchandise is heading 3926, HTSUSA.
Having concluded that the garments are properly classified in heading 3926, HTSUSA, as being “of plastic,” the correct subheading remains to be determined. The Customs Service, pursuant to General Rule of Interpretation 6, will apply GRI 1 to the subheading levels of heading 3926, HTSUSA. General Rule of Interpretation 6 provides for the application of GRI 1 through GRI 5 for the purpose of determining the correct subheading of a heading when comparing subheadings at the same level. See General Rule of Interpretation 6, HTSUS.
Applying GRI 1 at the subheading levels pursuant to GRI 6, the garments in issue are classified in subheading 3926.20.9050, HTSUSA. Subheading 3926.20.9050, HTSUSA, provides:
Other articles of plastics and articles of other materials of heading 3901 to 3914:
Articles of apparel and clothing accessories (including gloves):
Other:
Other;
3926.20.9050 Other.
HOLDING
New York Ruling Letter F83735 (Mar. 20, 2000) has been reconsidered and is hereby revoked.
The garments, style numbers M30033, Y30333 and B30533, are classified in subheading 3926.20.9050, Harmonized Tariff Schedule of the United States Annotated.
The General Column 1 Rate of Duty is five (5) percent, ad valorem.
This ruling, in accordance with 19 U.S.C. 1625 (c), will become effective sixty days (60) after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division