CLA-2 RR:CTF:TCM W968304 BtB
Mr. Michael Blauer
Blauer Manufacturing Company, Inc.
20 Aberdeen St.
Boston, MA 02215
Re: Reconsideration of NY M83113; classification of men’s rain garments from China
Dear Mr. Blauer:
This is in reply to your letter dated June 19, 2006, to the Commissioner of Customs, requesting reconsideration of New York Ruling Letter (“NY”) M83113, dated June 2, 2006, on the classification, under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), of two certain styles of men’s rain garments from China.
Pursuant to your reconsideration request, we have reviewed NY M83113. This ruling, Headquarters Ruling Letter (“HQ”) 968304, affirms the holding in NY M83113. The garment and fabric swatch samples that you provided to us are being returned to you with this letter.
FACTS:
In NY M83113, the two certain styles of men’s rain garments at issue, identified as style 9690 and style 9691, were described as follows:
The first item, style 9690, is a men’s reversible raincoat with a center back length of approximately 47-inches. It is made of a bonded fabric consisting of one surface layer of a woven 100% polyester fabric and a second outer surface of a filament yarn knit 100% polyester fabric, with a Goretex® film in the center. The woven surface is black, while the knitted surface is a high visibility yellow with reflective stripes on the upper body and sleeves. The coat has a full front opening with reversible snap closures, pass-through pocket openings at the waist and sleeve ends with snaps and a hook-and-loop secured tab.
The second item, style 9691, is similar to the first, but has a center back length of approximately 31-inches and has vents with snaps at the side seams.
In NY M83113, U.S. Customs and Border Protection (“CBP”) classified style 9690 in subheading 6201.13.4015, HTSUSA, which provides for: “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: Overcoats, carcoats, capes, cloaks and similar coats: Of man-made fibers: Other: Other, Raincoats: Men’s.”
Additionally, CBP classified style 9691 in subheading 6201.93.3000, HTSUSA, which provides for: “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: Water resistant” if, at the time of entry, the garments meet the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUSA. If however, at the time of entry, the garments do not meet the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUSA, CBP held that the garments are classified in subheading 6201.93.3511, HTSUSA, which provides for: “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.”
In your original ruling request and in your request for reconsideration, you asserted that style 9690 and style 9691 are classifiable in subheading 6210.40, HTSUSA, which provides for: “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907: Other men’s or boys’ garments.” You specifically assert that style 9690 and style 9691 are made up of fabrics of heading 5903, HTSUSA, which provides for: “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.”
ISSUE:
What is the classification of style 9690 and style 9691?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 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." If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
A product's classification is determined by first looking to the headings and section or chapter notes. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). Only after determining that a product is classifiable under the heading should one look to the subheadings to find the correct classification for the merchandise." Id.
The headings under consideration for classification of style 9690 and style 9691 are heading 6201, HTSUSA, and heading 6210, HTSUSA. Heading 6201, HTSUSA, provides for: “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.” Meanwhile, heading 6210, HTSUSA, provides for: “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907.”
Note 5 to Chapter 62, HTSUSA, is relevant to this analysis and states: “Garments which are, prima facie, classifiable both in heading 6210 and in other headings of [Chapter 62], excluding heading 6209, are to be classified in heading 6210.” In light of the above, we will first evaluate whether style 9690 and style 9691 are prima facie classifiable in heading 6210, HTSUSA. To be classified in heading 6210, HTSUSA, it is necessary for a garment to be made up of a fabric classified in one of the headings enumerated in the legal text of heading 6210, HTSUSA. You assert that style 9690 and style 9691 are garments made up of fabrics of heading 5903, HTSUSA.
Note 2(a) to Chapter 59, HTSUSA, states that, subject to certain enumerated exceptions, 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 materials (compact or cellular).” Note 2(a)(1) to Chapter 59, HTSUSA, specifically excepts “[f]abrics in which the impregnation, coating or covering cannot be seen with the naked eye” from coverage of Note 2(a) and states, “for the purpose of this provision, no account should be taken of any resulting change of color.”
The EN to heading 5903 state, in pertinent part, that:
[t]his heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g., poly(vinyl chloride)).
Such products are classified here whatever their weight per m² and whatever the nature of the plastic component (compact or cellular), provided :
That, in the case of impregnated, coated or covered fabrics, the
impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour.
Textile fabrics in which the impregnation, coating or covering cannot be seen with the naked eye or can be seen only by reason of a resulting change in colour usually fall in Chapters 50 to 55, 58 or 60. Examples of such fabrics are those impregnated with substances designed solely to render them crease-proof, moth-proof, unshrinkable or waterproof (e.g., waterproof gabardines and poplins). Textile fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are also classified in Chapters 50 to 55, 58 or 60.
* * * * *
The laminated fabrics of this heading should not be confused with fabrics which are simply assembled in layers by means of a plastic adhesive. These fabrics, which have no plastics showing in cross-section, generally fall in Chapters 50 to 55.
A fabric is considered a fabric of heading 5903, HTSUSA, if its impregnation, coating or covering of plastics is visible to the naked eye as required by Note 2(a)(1) to Chapter 59, HTSUSA, with no account taken of any resulting change in color. It is CBP’s longstanding view that the wording of Note 2(a)(1), “visible to 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 or covered. The plastic material added to the fabric must be visibly distinguishable from the fabric without the use of magnification. CBP believes this criterion is satisfied when the application of plastics material visibly affects the surface character of the fabric. In such an instance, the naked eye is seeing the plastics. No account should be taken of any resulting change in only shine, reflectivity, dullness or other property which causes the viewer to see the effect rather than presence of plastic material. See generally HQ 967884, dated October 26, 2005, on the classification of certain pants with polyurethane coating; HQ 082219, dated November 21, 1988, on the classification of three fabrics; HQ 085245, dated August 31, 1989, on the classification of a men's nylon coat made of certain coated fabrics; HQ 087941, dated December 12, 1990, on the classification of certain fusible interlining fabrics from Japan; and HQ 084165, dated June 26, 1989, on the classification of certain fusible interlining fabrics.
Determinations on whether an impregnation, coating or covering can be seen with the naked eye are made on the basis of the characteristics of the specific fabric being ruled upon. The wording of Note 2(a)(1) to Chapter 59, HTSUSA, does not consider the fact that the same amount of plastics application may be more visible on one fabric, or on one color fabric, than on another. See HQ 084165, dated June 26, 1989, and HQ 084285, dated July 20, 1989.
When reviewing fabrics assembled in layers under Note 2(a)(1) to Chapter 59, HTSUSA, CBP examines the fabrics to ascertain whether the plastics layer is visible in the cross-section to the naked eye. See e.g., NY M82475, dated August 29, 2006, on the classification of a certain bonded fabric, and NY L80809, dated December 28, 2004, on the classification of men’s knit windblock garments. Additionally, CBP examines whether the plastics layer is visible through one of the assembled layers of fabric. In situations where one of the fabrics is of a loosely knitted or woven construction that allows the coating to be seen through that layer of fabric, CBP has considered such coating to be “visible to the naked eye.” See e.g., NY L89462, dated January 13, 2006, and NY K87940, dated July 23, 2004, both in which CBP found plastic film to be visible through a knit layer.
Applying the “visible to the naked eye” test on the fabric of style 9690 and style 9691, using normally corrected vision in a well-lighted room, no coating was visibly distinguishable from the fabrics without the use of magnification. A plastics layer was not visible to the naked eye in the cross-section of the fabrics or through one of their layers. Consequently, we view these fabrics as being “simply assembled in layers by means of a plastic adhesive.” The fabrics are not classified in heading 5903, HTSUSA, and, as a result, style 9690 and style 9691, are not garments made up of fabrics of heading 5903, HTSUSA. Style 9690 and style 9691 are therefore not prima facie classifiable under heading 6210, HTSUSA.
In your request for reconsideration, you emphasize that many fabrics assembled in layers incorporating a Goretex® film (which you refer to as “similar Gore Tex fabric three ply laminates”) have been classified in heading 5903, HTSUSA. We acknowledge this fact, yet we emphasize that determinations on whether a plastics layer can be seen with the naked eye are made on a case-by-case basis and are dependent on the characteristics of the specific fabric being ruled upon. It is correct that many fabrics assembled in layers incorporating a Goretex® film have been classified in heading 5903, HTSUSA. Yet, it is not the presence of the film that necessitates classification in heading 5903, HTSUSA, but the fact that the coatings on these fabrics were determined to be visible to the naked eye. In this instance, the coating in style 9690 and style 9691 is not visible to the naked eye under our standard testing method.
Style 9690 and style 9691 are provided for by heading 6201, HTSUSA, which provides for: “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.” As a raincoat of man-made fibers, style 9690 is specifically provided for by subheading 6201.13, HTSUSA. As an article similar to an anorak, style 9691 is specifically provided for by subheading 6201.93, HTSUSA. The classification of style 9691 at the eight-digit level will depend on whether the style meets the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUSA, at the time of entry, as set forth below.
With your request for reconsideration, you submitted swatches of fabric that you stated were materially identical to the fabric of style 9690 and style 9691 that we reviewed in NY M83113 except for color of the knitted surface. Specifically, you submitted one swatch in which the knitted surface is orange and one swatch in which the knitted surface is black. As these swatches are not identical to the fabric of the samples that we classified in NY M83113, we could not consider them in the reconsideration of NY M83113. Accordingly, you are encouraged to request ruling letters on each of these fabrics or the garments made of these fabrics.
HOLDING:
Style 9690 is classified in subheading 6201.13.4015, HTSUSA, which provides for: “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: Overcoats, carcoats, capes, cloaks and similar coats: Of man-made fibers: Other: Other, Raincoats: Men’s.” The applicable column one, general duty rate under the 2006 HTSUSA is 27.7% ad valorem and style 9690 will fall within textile category designation 634.
If, at the time of entry, style 9691 meets the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUSA, it is classified in subheading 6201.93.3000, HTSUSA, which provides for: “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: Water resistant.” If style 9691 is classified in subheading 6201.93.3000, the applicable column one, general duty rate under the 2006 HTSUSA is 7.1% ad valorem and style 9691 will fall within textile category designation 634.
If however, at the time of entry, style 9691 does not meet the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUSA, it is classified in subheading 6201.93.3511, HTSUSA, which provides for: “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.” If style 9691 is classified in subheading 6201.93.3511, the applicable column one, general duty rate under the 2006 HTSUSA is 27.7% ad valorem and style 9691 will fall within textile category designation 634.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.
Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (“WTO”) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.
EFFECT ON OTHER RULINGS:
NY M83113, dated June 2, 2006, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division