HQ 963799

> April 17, 2001
>
> CLA-2 RR:CR:TE 963799 jsj
>
> CATEGORY: Classification
>
> TARIFF NO.: 6210.50.3000
>
> Area Port Director
>
> U.S. Customs Service
>
> 700 Doug Davis Drive
>
> Atlanta, Georgia 30354
>
> Re: Application for Further Review of Protest No.: 1704-00-100007;
> Subheadings 3926.20.6000, 6210.40.3000 and 6210.50.3000, HTSUSA;
> General Rules of Interpretation 1 and 6.
>
> Dear Area Port Director:
>
> The purpose of this correspondence is to address the Application for
> Further Review of Protest Number: 1704-00-100007, dated January 25,
> 2000. The Importer of Record and Protesting Party is Essex
> Manufacturing, Inc. The Protesting Party is represented by Neville,
> Peterson & Williams.
>
> The Customs Service issued a Notice of Action to Essex Manufacturing,
> Inc. The Notice of Action indicated that a rate advance had been taken
> based on the conclusion of the Customs Service Import Specialist that
> the Importer had not properly classified certain merchandise. The
> Importer, subsequent to receipt of the Notice of Action, filed a
> Protest challenging the Customs Service classification. Essex
> Manufacturing's Protest accompanied an Application for Further Review
> that was approved.
>
> A review of the Protest (Customs Form 19) and the Customs Protest and
> Summons Information Report (Customs Form 6445A) indicates that the
> protest was timely filed pursuant to 19 U.S.C. 1514 (c) (3) (West
> 1999) and 19 C.F.R. 174.12 (e) (2).
>
> This Protest decision is being issued subsequent to the following: (1)
> A review of the Protest and Memorandum of Points and Authorities in
> Support of Protest submitted on the behalf of Essex Manufacturing; (2)
> A meeting conducted at the Customs Service Headquarters on January 10,
> 2001, at which time Essex Manufacturing was represented by Counsel;
> and (3) A review of Customs Service laboratory report number:
> 4-99-50420. Counsel for the Importer, at the January 10, 2001 meeting,
> was extended the opportunity to provide an additional submission. No
> submission related to this protest was forthcoming.
>
> FACTS
>
> The garment in issue, a jacket designed to protect the wearer from
> rain, is a long-sleeve, mid-thigh length article. It is Navy blue and
> identified by the manufacturer as style 277.
>
> The jacket, according to attached labeling, is composed of a
> one-hundred (100) percent polyvinyl chloride (PVC) outer shell with a
> one-hundred (100) percent nylon backing. A Customs Service laboratory
> report indicates that the jacket is wholly composed of a compact
> polyvinyl chloride (PVC) plastic-coated fabric with a synthetic fiber
> plain weave fabric backing. The Customs Service laboratory did not
> identify any cellular plastic. The polyvinyl chloride plastic, on
> visual inspection, completely obscures the underlying nylon fabric.
>
> The jacket features a front zipper closure. The zipper closure is
> protected from the elements by a storm flap that secures closed
> through the use of snaps. The jacket has an attached hood with a firm
> peak. The garment secures around the wearer's neck by means of a top
> snap and a drawstring closure that has two spring-loaded plastic
> locks. The material of the jacket rises above the wearer's neck when
> secured to prevent the intrusion of rain.
>
> Two slash pockets are located on the lower, front aspect of the
> jacket, one on each side of the jacket. The pockets have storm flaps
> that inhibit the intrusion of rain. The bottom of the garment secures
> to the wearer through the use of a drawstring and two spring-loaded
> plastic locks, identical to those that secure the jacket around the
> wearer's neck. The jacket has vents that encircle the garment at the
> wearer's chest. The sleeve cuffs are elasticized
>
> The Protestant claims that the garment is not valued in excess of ten
> (\$10) dollars.
>
> ISSUE
>
> Did the Customs Service properly issue the Notice of Action taking a
> rate advance based on the Importer of Record's incorrect
> classification of the merchandise pursuant to the Harmonized Tariff
> Schedule of the United States Annotated ?
>
> LAW AND ANALYSIS
>
> Essex Manufacturing imported into the Port of Atlanta the
> above-describe merchandise which it identified as "plastic rainwear"
> and classified in subheading 3926.20.6000, Harmonized Tariff Schedule
> of the United States Annotated (HTSUSA). The Customs Service Import
> Specialist reviewed the Entry Summary and the merchandise, and
> concluded that the merchandise should have been classified in
> subheading 6210.40.3000, HTSUSA, as a men's or boys garment made up of
> a fabric of heading 5903, HTSUSA, that had man-made nylon fibers that
> were coated or covered with plastic which completely obscured the
> underlying nylon.
>
> Essex Manufacturing suggests that the garment in issue is properly
> classified as plastic rainwear in subheading 3926.20.6000, HTSUSA.
> Subheading 3926.20.6000, HTSUSA, provides:

3926. Other articles of plastics and articles of other materials of
      headings 3901 to 3914:

      20. Articles of apparel and clothing accessories (including
          gloves):

> Other:
>
> 3926.20.60 Plastic rainwear, including jackets, coats, ponchos, parkas
> and slickers, featuring an outer shell of polyvinyl chloride plastic
> with or without attached hoods, valued not over \$10 per unit.
>
> The classification of imported merchandise pursuant to the Harmonized
> Tariff Schedule of the United States is governed by 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."[^1]
>
> Heading 3926 of Chapter 39 of the HTSUSA, *Plastics and Articles
> Thereof*[^2], provides for the classification of "Other articles of
> plastics and articles of other materials of headings 3901 to 3914."
> *Heading 3926, HTSUSA*. The materials of headings 3901 to 3914,
> HTSUSA, include, among other materials, polyvinyl chloride, a polymer
> of vinyl chloride. The jacket being imported is constructed of a woven
> nylon fabric that is coated or covered with a compact polyvinyl
> chloride plastic material.
>
> The General Explanatory Note to Chapter 39, particularly the
> penultimate paragraph "**Plastics and textile combinations**," assist
> in determining whether the article in issue may properly be classified
> in heading 3926, HTSUSA. The Explanatory Notes (EN) constitute the
> official interpretation of the Harmonized System at the international
> level. The Explanatory Notes, although neither legally binding nor
> dispositive of classification issues, do provide commentary on the
> scope of each heading of the HTSUSA. The EN are generally indicative
> of the proper interpretation of the headings. *See* T.D. 89-80, 54
> Fed. Reg. 35127-28 (Aug. 23, 1989).
>
> The General EN provides, in pertinent part, that plates, sheets and
> strip of *cellular* plastics combined with textile fabric, felt or
> nonwovens are specifically encompassed within Chapter 39, when the
> textile is present merely for reinforcing purposes. *See Chapter 39,
> General Explanatory Note,* ***Plastics and textile combinations***
> (d). Merchandise may, therefore, only be classified in Chapter 39 if
> the plates, sheet or strip of plastic that is combined with the
> textile fabric is *cellular*. Since the PVC plastic of which the
> jacket is made is compact rather than cellular, the jacket is not
> classifiable in Chapter 39. *Cf.* NY A83556 (May 20, 1996)
> (classifying a woman's parka with an outer surface of polyvinyl
> chloride *cellular* plastic material in subheading 3926.20.6000,
> HTSUSA).
>
> The Customs Service need not address the issue of whether the nylon
> fabric of the jacket is "present merely for reinforcing purposes" as
> addressed in the General Explanatory Note. *Chapter 39, General
> Explanatory Note*. Resolution of the issue of whether the textile
> fabric serves merely to reinforce the plastic is unnecessary, as
> previously stated, because the plastic material of which the jacket is
> composed is compact, not cellular, precluding classification in
> Chapter 39.
>
> Referencing GRI 1, which mandates that the classification of
> merchandise begin with a determination of the appropriate heading
> prior to proceeding to a review of the subheadings, the jacket in
> issue is not classifiable as plastic rainwear in subheading
> 3926.20.6000, HTSUSA. The jacket is composed of a compact plastic,
> rather than cellular plastic, combined with a textile fabric. It is
> not, for that reason, the merchandise described in heading 3926,
> HTSUSA, precluding consideration of any subheading within heading
> 3926, HTSUSA.
>
> The Customs Service rate advance in the Notice of Action issued to the
> Protestant was premised on the merchandise being properly classified
> in subheading 6210.40.3000, HTSUSA. The Customs Service will,
> therefore, examine subheading 6210.40.3000, HTSUSA, to determine if it
> is the correct HTSUSA subheading for the merchandise in issue.
>
> Subheading 6210.40.3000, HTSUSA, provides:

6210. Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or
      5907:

      40. Other men's or boy's garments:

> Of man-made fibers:
>
> 6210.40.30 Having an outer shell impregnated, coated, covered or
> laminated with rubber or plastics material which completely obscures
> the underlying fabric.
>
> Classification of the jacket in heading 6210, HTSUSA, initially
> requires that the garment be made up of a fabric of one of the five
> enumerated headings of Chapters 56 and 59, HTSUSA. A review of the
> enumerated headings indicates that the only heading applicable to the
> jacket in issue is heading 5903, HTSUSA. Heading 5903, HTSUSA,
> provides for the classification of "\[t\]extile fabrics impregnated,
> coated, covered or laminated with plastics, other than those of
> heading 5902."
>
> A review of the Chapter Notes to Chapter 59 further addresses the
> question of whether the jacket is properly classified in heading 6210.
> 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 jacket under consideration,
> as previously stated, is composed entirely of compact plastic not
> cellular plastic. Exception (5) to Chapter 59, Note 2 (a) is,
> therefore, not applicable and the jacket comports with the dictates of
> Chapter 59 Note 2 (a). *See also Chapter 39, General Explanatory Note*
> (providing that the classification of plastics and textile
> combinations are essentially governed by Note 1 to Section XI, Note 3
> to Chapter 56 and, in particular, Note 2 to Chapter 59).
>
> Having concluded that the garment is properly classified in heading
> 6210, HTSUSA, the correct subheading remains to be determined. The
> Customs Service, pursuant to General Rule of Interpretation 6, will
> apply GRI 1 to the six digit subheading level of heading 6210, 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*.
>
> A review of subheadings 6210.10 HTSUSA, through 6210.50, HTSUSA, of
> heading 6210, HTSUSA, leads the Customs Service to the conclusion that
> the correct six digit subheading is 6210.50, HTSUSA. The merchandise
> in issue is not: (1) "Of fabrics of heading 5602 or 5603," subheading
> 6120.10, HTSUSA; (2) "Other garments of the type described in
> subheadings 6201.11 to 6201.19," subheading 6210.20, HTSUSA; or (3)
> "Other garments of the type described in subheadings 6202.11 to
> 6202.19," subheading 6210.30, HTSUSA.
>
> The remaining subheadings at the six digit level are subheading
> 6210.40, HTSUSA, "Other men's or boy's garments" and subheading
> 6210.50, HTSUSA, "Other women's and girls' garments." A review of the
> Chapter Notes of Chapter 62, an examination of the garment and, in
> this instance, an understanding of to whom the garment is marketed
> results in the conclusion that the correct six digit subheading is
> 6210.50, HTSUSA.
>
> Determining whether a garment classified in Chapter 62 is properly
> classified as a "men's or boys' garment" or a "women's or girls'
> garment" requires an examination of Chapter 62, Note 8. Note 8
> provides:
>
> > Garments of this chapter designed for left over right closure at the
> > front shall be regarded as men's or boys' garments, and those
> > designed for right over left closure at the front as women's or
> > girls' garments. These provisions do not apply where the cut of the
> > garment clearly indicates that it is designed for one or the other
> > of the sexes.
>
> > Garments which cannot be identified as either men's or boys'
> > garments or as women's or girls' garments are to be classified in
> > the headings covering women's or girls' garments. *Chapter 62, Note
> > 8, HTSUSA*.
>
> The Customs Service, subsequent to a review of the chapter note and
> with an understanding of how garments with both zippers and storm
> flaps are constructed and function, concludes that the initial aspect
> of the chapter note, addressing the direction of closure, is
> inapplicable to the classification of the garment in issue.
>
> The jacket in issue has a zipper closure and a storm flap. The garment
> secures closed through the use of the zipper. Zippers are neutral
> closures, securing garments closed neither right over left, nor left
> over right.
>
> The storm flap is designed to prevent the intrusion of wind and rain.
> The storm flap secures to the jacket by snaps. Absent the snaps, the
> storm flap would be of minimal or questionable value. The storm flap
> is attached to the right side of the instant garment and secures over
> the zipper to the left side of the garment through the use of five
> snaps.
>
> Although utilization of the snaps that secure the storm flap to the
> jacket may function to secure the jacket closed, use of the storm flap
> snaps in this fashion is secondary. Use of the storm flap snaps is
> neither a faster nor a more efficient method of securing the jacket
> closed.
>
> It is the conclusion of the Customs Service that neither the zipper,
> which is a neutral closure, nor the storm flap, particularly the
> direction in which it secures to the jacket, should be taken into
> consideration for the purpose of determining whether the garment is
> properly classified as a man's or woman's garment.
>
> The Customs Service, in reliance on the technical expertise of the
> National Commodity Specialist Division of the Office of Regulations
> and Rulings, additionally concludes that classifying garments with
> both zippers and storm flaps based on the direction the storm flap
> closes would result in the misclassification of a significant
> percentage of garments. The National Commodity Specialist Division
> advises that most outerwear designed for men or boys and a significant
> percentage of outerwear designed for women or girls that have both
> zippers and storm flaps have zipper pulls on the right side. Garments
> that have both zippers and storm flaps in which the zipper pull is on
> the right side generally have storm flaps that close left over right.
>
> Storm flaps generally secure closed in the direction of the side of
> the garment with the zipper pull. Storm flaps secure in this manner
> because of the difficulty that would be encountered by the wearer in
> attempting to zip closed a jacket with the zipper pull on the same
> side as the storm flap. Classification of garments based on the
> direction of closure of the storm flap, that is in turn dependent on
> whether the zipper pull is on the left side or the right side of the
> garment, would result in a significant percentage of garments being
> incorrectly classified as women's or girls' garments.
>
> Having concluded that it would be inappropriate to classify garments
> with both zippers and storm flaps based on the initial aspect of
> Chapter 62, Note 8, addressing the direction of the closure, the
> Customs Service must next examine the cut of the garment. The cut of
> the instant jacket is gender neutral, failing to provide a basis for
> classifying the jacket in subheading 6210.40, HTSUSA, or 6210.50,
> HTSUSA.
>
> The Customs Service, prior to relying on the final aspect of the legal
> note which classifies gender neutral garments by default as women's or
> girls', undertook to determine how the jacket is marketed. The jacket,
> as revealed by the jacket label, is marketed under the trade name
> "Misty Harbor." "Misty Harbor" rainwear, according to information
> obtained by Customs, is marketed to women. *See Mast Industries v.
> United States*, 9 C.I.T. 549 (C.I.T. 1985) *aff'd* 786 F.2d. 1144
> (Fed.Cir. 1986) (providing that an understanding of the design,
> manufacture, marketing and use of apparel assists in its
> classification).
>
> Although the Import Specialist concluded that the jacket was a "men's
> or boys' garment" of subheading 6210.40, HTSUSA, the Customs Service,
> on further review of the law, the garment and the merchandising,
> concludes that the jacket should be classified as a "women's or girls'
> garment" in subheading 6210.50, HTSUSA. Since knowledge of the
> garment's merchandising assisted Customs in determining that it is a
> women's or girls' garment, the garment is not being classified by
> default pursuant to Chapter 62, Note 8, as a women's or girls'
> article. Relying on the application of GRI 1 to the six digit
> subheading level, the subheading description of subheading 6210.50,
> HTSUSA, describes the merchandise.
>
> The only issues that remain to be addressed prior to classifying the
> garment pursuant to GRI 6 in subheading 6210.50.3000, HTSUSA, are
> straightforward. The jacket is composed of a man-made nylon fabric
> that is impregnated, coated, covered or laminated with a polyvinyl
> chloride plastic. The plastic coating or covering completely obscures
> the underlying nylon fabric.
>
> Essex Manufacturing suggests that the underlying nylon fabric is *de
> minimis* and should be disregarded. A plain reading of the tariff
> schedule, particularly subheading 6210.50.3000, HTSUSA, does not
> support the position of the Importer. Neither the HTSUSA nor the
> Explanatory Notes offer a basis for disregarding the underlying nylon
> fabric and Counsel has not provided one.
>
> HOLDING
>
> The protest is DENIED in full.
>
> The garment in issue is classified in subheading 6210.50.3000, HTSUSA.
>
> The general column one rate of duty is five and three-tenths (5.3)
> percent, *ad valorem*.
>
> In accordance with Customs Directive 099 3550-065, dated August 4,
> 1993, Subject: Revised Protest Directive, section 3 A. (11) (b), you
> are to mail this decision and Customs Form 19 to the Protestant no
> later than 60 days from the date of this letter. Any reliquidation of
> the entry or entries in accordance with this decision must be
> accomplished prior to mailing this decision.
>
> The Office of Regulations & Rulings will make this decision available
> to Customs Service personnel and to the public on the Customs Service
> Home Page of the World Wide Web, www.customs.gov, by means of the
> Freedom of Information Act and by other methods of public distribution
> sixty days from the date of this decision.
>
> Sincerely,
>
> John Durant, Director

#  Commercial Rulings Division

[^1]: GRI 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 in
    their sequential order.

[^2]: The titles of sections, chapters and sub-chapters are provided for
    ease of reference only. *General Rule of Interpretation 1.*