CLA-2 RR:CR:TE 967498 CMR
JFK International Airport Area
C/O Chief, Liquidation and Protest Branch
JFK International Airport
Jamaica, NY 11430
RE: Protest with Application for Further Review, number 4701-04-100977; Notices to Redeliver; Classification as jackets of heading 6102 or garments of heading 6110
This is in response to your memorandum of December 29, 2004, regarding protest number 4701-04-100977 with Application for Further Review, filed by McGuireWoods on behalf of RAG Imports, Inc., protesting a notice to redeliver an entry of certain women’s upper body garments. The redelivery notice is based upon Customs and Border Protection’s (CBP) belief the garments are properly classified as women’s cotton jackets of heading 6102, Harmonized Tariff Schedule of the United States (HTSUS) necessitating a visa for quota category 335. The protestant entered the merchandise as cotton garments of heading 6106, HTSUS, requiring a visa for quota category 339. The notice to redeliver is for failure to present the proper visa.
The redelivery notice was issued on October 28, 2004. The protest with application for further review was timely filed on November 22, 2004. Further review was properly allowed as the protestant met the requirements for further review set forth in 19 C.F.R. § 174.24(a). The protestant’s counsel asserts in the protest that the merchandise at issue is properly classified in heading 6110, HTSUS, which requires a visa for quota category 339.
The merchandise at issue consists of two women’s garments, styles DDJ11X and DDJ51X, which each feature long sleeves with rib knit cuffs, kangaroo front pockets, a rib knit waistband (partial rib knit waistband in the case of DDJ11X; full, in case of DDJ51X) and a full front opening secured by a heavy-duty zipper. Style DDJ11X features a hood, while style DDJ51X features a stand-up collar. Each garment is made of knit velour fabric, however they differ in fiber composition. Style DDJ11X is constructed of 80 percent cotton/20 percent polyester knit fabric with 100 percent cotton rib knit fabric at the waist and cuffs. Style DDJ51X constructed of 60 percent cotton/37 percent polyester/3 percent spandex knit fabric with 100 percent cotton rib knit fabric at the waist and cuffs. Neither garment is lined, nor is the fabric napped on the inside of the garments. The protestant’s counsel has submitted that the fabric weight for the fabric of style DDJ11X is 7.2 ounces per square yard and the fabric weight for the fabric of style DDJ51X is 6.4 ounces per square yard.
Was the notice to redeliver for failure to present a visa for quota category 335, based on a belief the garments at issue are properly classified as jackets of heading 6102, HTSUS, proper?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."
As noted above, the garments at issue were entered as shirts or blouses of heading 6106, HTSUS, which required a visa for quota category 339. The port requested a sample from the shipment. After reviewing the sample, the port reclassified the garments as jackets of heading 6102, HTSUS, requiring a visa for quota category 335, and issued a notice to redeliver for failure to present the proper visa. The protestant’s counsel, in the protest application, argues for classification of the garments at issue in heading 6110, HTSUS, which required a visa for quota category 339 (the visa which was presented at the time of entry), abandoning the entered classification of heading 6106, HTSUS.
The “Customs Protest and Summons Information Report” indicates the reclassification by the port of the merchandise into heading 6102, HTSUS, as jackets, was based on the application of the “Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories,” CIE 13/88, November 23, 1988 (hereinafter, “Guidelines”). With regard to garments which are considered “hybrid” garments, i.e., exhibiting features of shirts and features of jackets, the “Guidelines” offer a list of features which may indicate a garment should be classified as a jacket or coat if it possesses at least three of the listed features and the result is not unreasonable. The port found the garments possessed three of the listed features—(1) pockets at or below the waist, (2) a heavy-duty zipper and (3) rib knit cuffs and rib knit waistbands. The port also relied on NY ruling letter I84672 of August 5, 2002, in which a girls’ velour garment featuring a hood, two slash pockets, a full front zipper, rib knit cuffs and a rib knit waistband was classified as a jacket of heading 6102, HTSUS. The jacket was constructed of finely knit velour fabric consisting of 80 percent cotton/20 percent polyester fibers.
The protestant’s counsel argues that the rib knit waistband of each garment does not provide a means of tightening at the bottom, but allows the garment to hang loosely. The protestant argues that therefore the garments each possess at most two of the features listed in the “Guidelines.” Counsel also cites to CBP ruling letters HQ 964430, of November 28, 2000, classifying a similar garment as a cardigan of heading 6110, HTSUS, and HQ 966831, of December 22, 2004, revoking a ruling classifying a garment as a shirt of heading 6205, HTSUS, and classifying the garment as a jacket of heading 6201, HTSUS, based in part on the fabric weight of the body fabric of the garment and the presence of a full fleece lining, quilted sleeve lining, and oversize cut of the garment. In addition, NY J84236, of June 2, 2003, and NY C87389, of July 12, 2004, classifying knit velour upper body garments each featuring a hood, long sleeves, full front opening with a zipper closure, pockets below the waist and a rib knit bottom (and rib knit cuffs in the case of NY J84236) are cited as rulings classifying substantially similar, if not identical, garments in heading 6110, HTSUS.
The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) constitute the official interpretation of the nomenclature at the international level. The ENs are not legally binding, however, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the CBP to follow, whenever possible, the terms of the EN when interpreting the HTSUS.
With regard to heading 6102, HTSUS, the heading provides for “[w]omen’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6104.” The EN for heading 6102 provides that “[the provisions of the Explanatory Note to heading 61.01 apply mutatis mutandis to the articles of this heading.” The EN to heading 6101, states, in relevant part:
This heading covers a category of knitted or crocheted garments for men or boys, characterized by the fact that they are generally worn over all other clothing for protection against the weather.
Overcoats, raincoats, car-coats, capes including ponchos, cloaks, anoraks including ski-jackets, wind-cheaters, wind-jackets and similar articles, such as three-quarter coats, greatcoats, hooded capes, duffel coats, trench coats, gabardines, parkas, padded waistcoats.
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Heading 6110 provides for “[s]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. The EN to heading 6110 states, in relevant part:
This heading covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles).
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This office has considered the reasons set forth by the port for its classification and the arguments presented by the protestant’s counsel. In addition, we have examined the garments at issue. When size medium samples were placed on a size medium mannequin, the garments hung loose around the waist/hip area and did not provide the tightening at the bottom generally associated with jackets classifiable in heading 6201, HTSUS.
We agree with the protestant. These garments are not designed nor exhibit features which would protect the wearer against the weather. While these garments would provide some additional warmth to the wearer, they would not provide the degree of protection generally associated with the garments classifiable in heading 6201, HTSUS. They are not, in our view, similar to the garments named in heading 6201, HTSUS. However, they are similar to the garments of heading 6110, HTSUS.
The fabric weight is argued to be a defining characteristic by protestant’s counsel. While we may not agree that it is the defining characteristic, we do agree it must be considered in determining the nature of protection the garment may offer and the proper classification of the garment. The fabric weight of the garment is akin to that found in sweaters, sweatshirts, pullovers, and cardigan type garments. The degree of protection the garment will offer the wearer is also akin to that found in many of the garments classified in heading 6110, HTSUS. We note that in HQ 962593 of December 2, 1999, CBP classified a girls’ upper body garment with a napped interior, a full front zippered opening, long sleeves with rib knit cuffs, a straight hemmed bottom, a hood with a drawstring, and two kangaroo-style pockets at the waist in heading 6110, HTSUS. In reaching our decision, we noted the lightweight fabric construction and lack of tightening at the bottom of the garment as features which would make classification as a jacket of 6102, HTSUS, unreasonable. Additionally, in HQ 964430, of November 28, 2000 (cited by protestant’s counsel), we noted the weight of the fabric and the lack of tightening at the bottom of the garment as features which, when considered with the other features of the garment, led CBP to conclude the garment was classifiable as a cardigan of heading 6110.
As noted in the cited rulings, it is the combination of the fabric weight and various features of the garments that cause this office to conclude that these garments are not jackets of heading 6102, HTSUS, nor similar garments. They are properly classified as garments similar to the garments of heading 6110, HTSUS.
The garments at issue are properly classified in subheading 6110.20.2075, HTSUSA, which provides for “[s]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other: Other: Other: Women’s or girls’.” Merchandise classified in this subheading is dutiable at 16.5 percent ad valorem and in the year 2004, subject to quota category 339.
The protest is allowed. The redelivery notice should be cancelled as the proper visa was presented at the time of entry, i.e., visa for category 339.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial Rulings Division