CLA-2 RR:CR:TE 964392 ASM
Ms. Ludene Murphree
Import Compliance Manager
Gap Inc.
One Harrison Street
San Francisco, CA 94105
RE: Request for Reconsideration of classification of NY F83187: Infant/Toddler fake leather jean of PVC cellular plastic
Dear Ms. Murphree:
This is in response to a letter, dated May 30, 2000 , requesting reconsideration of Customs New York Ruling (NY) F83187 which classified infant/toddler leather jeans under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A fabric swatch was submitted to this office for examination.
FACTS:
The subject merchandise is identified as an Infant/Toddler size fake leather jean, style 720172. According to your description, the jean content is by weight, 66 percent polyvinyl chloride (PVC) and 34 percent polyester. The outer surface is PVC. Lightweight polyester knit fabric backs the PVC. The jean has a covered elastic waistband with belt loops, zipper fly front with left over right top snap closure, and five-pocket jean styling. The jeans are lined with 100 percent woven acetate fabric.
In NY F83187 dated March 10, 2000, the subject garments, style 720172, were classified, in subheading 6111.30.1000, HTSUSA, newborn to 24 month sizes, which has a textile quota category of 239; and 6113.00.1012, HTSUSA, over 24 month sizes, no quota. This classification was based on a review of the file and visual assessment of the fabric by the Customs National Import Specialist. Currently, you disagree with this classification and claim that the fabric is of PVC celllular construction and should be classified as an article of apparel of plastic under subheading 3926.20.9050, HTSUSA. In support of your Request for Reconsideration, you have now submitted an independent laboratory analysis of the material in question, which indicates that the PVC is of cellular construction.
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ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1,
and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Notes to the EN for Chapter 39 define cellular plastics as : “…plastics having many cells (either open, closed or both), dispersed throughout their mass. They include foam plastics, expanded plastics and microporous or microcellular plastics. They may be either flexible or rigid.” Thus, classification under heading 3926, HTSUSA, which provides for other articles of plastic, would require verification of the presence of air pockets in the material. Subsequent to the issuance of NY F83187, the Customs Laboratory verified that, in fact, the fabric does consist of a PVC type cellular plastic material. Although the PVC material has a backing of polyester knit fabric which is substantial and of high quality, it is Customs determination that this backing serves as reinforcement, thus the subject garment is classified in Chapter 39, by virtue of note 2(a)(5), Chapter 59, which states that:
Heading 5903 applies to:
Textile 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), other than:
Plates, sheets or strip of cellular plastics,
combined with textile fabric, where the
textile fabric is present merely for reinforcing purposes (chapter 39).
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HOLDING:
The subject merchandise is correctly classified in subheading 3926.20.9050, HTSUSA, which provides for, “Other articles of plastics and articles of other materials of headings 3901 to 3914: Articles of apparel and clothing accessories (including gloves): Other: Other, Other.” The general column one duty rate is 5 percent ad valorem., there is no textile restraint category.
NY F83187 is not subject to revocation procedures pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)) because the ruling was correct based on the information available to Customs at the time the ruling was issued. In order to facilitate the administration of this decision, copies of the present Headquarters Ruling 964392 and NY F83187 should be issued to all necessary Customs ports of entry.
Sincerely,
John Durant, Director
Commercial Rulings Division