CLA-2 CO:R:C:T 950990 jb
Richard M. Wortman, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017
RE: Classification of a men's knitted pullover with reverse side
consisting of knit lining-type fabric laminated to Gore-Tex;
subheading 6113.00.0084, HTSUSA.
Dear Mr. Wortman:
This is in response to your letter of November 25, 1991, on
behalf of your client, Etonic, Inc., requesting a binding ruling
for a men's knitted pullover garment with the reverse side
consisting of a knit-lining type fabric laminated to Gore-Tex.
Samples were submitted to Customs for examination and are being
returned under separate cover.
FACTS:
The submitted samples are virtually identical. The
merchandise consists of two men's pullover garments, Style 4600,
constructed from 100% cotton pique knit fabric containing 14
stitches per 2 centimeters counted in the horizontal direction.
The garments feature a rib knit mock turtleneck; long sleeves
with rib knit cuffs; quilted shoulder areas; and a rib knit
waistband. The reverse sides consist of a knit lining-type man-
made fabric laminated to Gore-Tex (also referred to as Gore XCR),
which is a breathable waterproof plastic membrane. The only
features which distinguish these two garments are an applique on
the lower right front panel of one of the samples and the color
of the linings. You state that only the last submitted sample
(with multi-colored lining) should be considered in determining
classification.
ISSUE:
Whether the subject garment is reversible and classifiable
under heading 6113, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes, taken in
order. Where goods cannot be classified solely on the basis of
GRI 1, the remaining GRI's will be applied, in the order of their
appearance.
Subheading Note 2 to Section XI HTSUSA, provides in
pertinent part:
(A) Products of Chapters 56 to 63 containing two or more
textile materials are to be regarded as consisting
wholly of that textile material which would be selected
under Note 2 to this Section for the classification of a
product of Chapters 50 to 55 consisting of the same
textile materials.
(B) For the application of this rule:
(a) Where appropriate, only the part which determines
the classification under Interpretative Rule
3 shall be taken into account.
Note 2(A), Section XI, to which Subheading Note 2(A) refers,
provides:
Goods classifiable in Chapters 50 to 55 or in Heading No.
58.09 or 59.02 and of a mixture of two or more textile
materials are to be classified as if consisting wholly of
that one textile material which predominates by weight over
any other single textile material.
Before the Subheading Note, which is predicated on the
Section Note, can be utilized, it must first be determined
which of the fabrics comprising the article the section note (and
therefore the Subheading Note) applies.
As the instant garment is constructed of more than one
material, any consideration of the headings that classify the
article must first be predicated on a determination of which
constituent material determines the classification of the
merchandise. Usually, apparel is classified under the HTSUSA
according to its outer shell. Accordingly, goods of chapter 61
with relatively unimportant linings, shoulder pads, pockets,
etc., would be classified according to Subheading Note 2(A),
Section XI, without considering those trimmings.
However, where those goods have parts or accessories that
contribute materially to their character or usefulness (for
example, heavy weight linings which provide a substantial degree
of warmth to the wearer), then those parts or accessories must be
considered along with the outer shell in determining the
applicable classification.
The garment in question is made up of several fabrics.
Where separate fabrics are combined to form a textile garment or
article as in the instant matter, reference is made first to
General Rule of Interpretation (GRI) 3 to select which part of
the garment (and which fabric that part of the garment comprises)
will determine classification.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System, (EN), while not legally binding,
constitute the official interpretation of the tariff at the
international level. It has been the practice of the Customs
Service to follow, whenever possible, those terms when
interpreting the HTSUSA.
GRI 3(b) provides:
Mixtures, composite goods consisting of different materials
or made up of different components, and goods put up in sets
for retail sale, which cannot be classified by reference to
3(a), shall be classified as if they consisted of the
material or component which gives them their essential
character, insofar as this criterion is applicable.
In most instances, to determine which fabric characterizes
the article for purposes of classification, GRI 3(b) is invoked
and the essential character test is applied. This test is
mandated since the article at issue is a composite good
consisting of different materials or made up of difference
components which cannot be classified by the preceding rules. In
this case, however, the criterion for determining essential
character does not provide satisfactory results. The submitted
article is in fact, comprised of two outershells. The Gore-Tex
side provides the wearer with protection from inclement weather,
and the cotton side may be worn by the wearer on those occasions
not requiring this additional feature.
Prior to Treasury Decision 91-78 (T.D. 91-78), Customs had,
in various rulings, determined that garments composed in part of
linings or interlinings of specialized fabrics, or plastic
membranes laminated to fabrics, or with heavy nonwoven insulating
layers, were classifiable in heading 6113 or 6210, HTSUSA.
This conclusion was based on Customs' interpretation of the
wording of the above headings, which provides for garments "made
up" of any fabric which imparts a significant characteristic to
the garment. This interpretation was based on the definition of
the term "made up" in Note 7 to Section XI, HTSUSA, which
generally provides for goods assembled by sewing, gumming or
otherwise (other than piece goods consisting of two or more
lengths of identical material joined end to end and pieced goods
composed of two or more textiles assembled in layers, whether or
not padded).
Customs position, based on various rulings, had been that a
garment is "made up" of any fabric which imparts a significant
characteristic to that garment. Thus, a garment may be "made
up" of a fabric but not be classified at the subheading level,
following GRI 3(b) or (c), HTSUSA, as being of that fabric.
After a review of this area, Customs concluded in
T.D. 91-78, that it was not appropriate to classify garments
under headings 6113 and 6210 based solely on the composition of
their linings, interlinings or nonwoven insulating layers. Thus,
Customs believes that garments consisting of different fabrics
should not be classified in headings 6113 or 6210, HTSUSA, unless
one of the fabrics listed in those headings is determined to
impart the essential character to the garment in question.
It is Customs position that while linings, interlinings or
nonwoven insulating layers do impart desirable and perhaps
necessary features to garments, it is usually the outer shell
which imparts the essential character to the garment. The outer
shell normally creates the garment and therefore, is considered
in determining the ultimate legal classification of that garment.
As was stated in T.D. 91-78, dated September 25, 1991:
In view of the wording of Headings 6113 and 6210, Customs
believes that a garment containing a plastics coated or
laminated fabric insulating layer, is not a garment "made
up" of one of those fabrics. In Headings 6113 and 6210,
HTSUS, as in Section XI generally, Customs applies Section
XI, Note 2 and Subheading Note 2 to determine the textile
material to be considered in classifying the merchandise.
Subheading Note 2(B)(a) provides that where appropriate,
"only the part which determines classification under general
interpretive Rule 3 shall be taken into account." The
pertinent portion of Rule 3 requires that where two or more
materials are combined in a garment, classification shall be
according to the material which provides the essential
character to the finished article. In almost all instances
(except the most extraordinary cases), it is our view that
the outer shell will provide the essential character.
Although their views are not binding on Customs, we have
consulted with classification experts (1) at the U.S.
International Trade Commission, (2) in the Canadian,
Australian, and United Kingdom Customs services, (3) in the
European Community, and (4) at the Customs Cooperation
Council. All stated that linings and interlinings should
not be considered in determining whether garments are
classifiable in Headings 6113 and 6210, HTSUS.
In the case of the submitted article, the function of the
Gore-Tex goes beyond that of a liner. In effect, it also serves
as an outershell imparting significant character to the garment.
It follows, that in classifying the garment, both sides must be
given equal merit.
Further examination of the sample at issue discloses a
number of factors that cause us to believe that both outershells
of the garment are prominent and that the pullover is reversible.
The styling of the garment reveals that regardless of the side
worn exposed:
1. there is a smooth and natural finish to the article
2. the sleeves do not give any resistance, nor bind the arms
of the wearer as they are inserted
3. there is sufficient aesthetic appeal, enhanced by the
bright colors and sharp design, to justify the wearer's
dual use
We believe that both the cotton and Gore-Tex sides of this
garment are primary and impart the identity to the article.
As a result of the foregoing, it is Customs position that
both the cotton side and the Gore-Tex portion of the garment
contribute substantially to the character of the pullover.
Thus, in essence, the submitted article is comprised of two
outershells of equal importance and use.
GRI 3(c) provides, in pertinent part:
When goods cannot be classified by reference to Rule 3(a) or
3(b), they are to be classified in the heading which occurs
last in numerical order among those which equally merit
consideration in determining their classification.
As per GRI 3(c), the submitted merchandise will be
classified under the heading which occurs last in numerical order
among those which equally merit consideration, i.e.,
6113.00.0084, HTSUSA.
HOLDING:
The submitted sample is properly classifiable in subheading
6113.00.0084, HTSUSA, which provides for garments made up of
knitted or crocheted fabrics of heading 5903, 5906 or 5907,
having an outer surface impregnated, coated, covered, or
laminated with rubber or plastics material which completely
obscures the underlying fabric: other: other: men's or boys'.
The duty rate is 7.6% ad valorem. The quota category is 659.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report On Current Import Quotas (Restraint
Levels), an issuance of the U.S. Customs Service, which is
updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division