CLA-2 RR:TC:TE 960579 jb
Asher Rubinstein, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman LLP
245 Park Avenue, 33rd Floor
New York, NY 10167-3397
RE: Classification of men's wool suit-type jacket; EN to heading
6103, HTSUSA
Dear Mr. Rubinstein:
This is in reply to your letter, dated May 13, 1997, on
behalf of GFT, USA, Inc., supplemented by additional
documentation on May 22, 1997, and January 29, 1998, regarding
the classification under the Harmonized Tariff Schedule of the
United States (HTSUS), for what you refer to as a men's woven
wool upper body garment. A sample was provided to this office
for examination.
FACTS:
The subject garment, referenced style number 1427-1, is a
man's woven wool upper body garment featuring lapels, long
sleeves, outer breast pocket, two interior breast pockets, an
interior pocket below the waist, two flapped exterior pockets at
the waist, and four panels, two front and two back, sewed
together lengthwise. The garment has a full frontal opening
without any means of closure. You state in your letter that
after importation a closure may be added through the additions of
buttons and button holes.
In your opinion this garment is precluded from
classification in headings 6201 and 6203, HTSUS, as an outerwear
garment or suit-type jacket, respectively, and is properly
classified in heading 6211, HTSUS, as an "other garment". In
support of this claim you state:
1. the subject garment is similar to the garment which was
the subject of HQ 954335, dated July 8, 1993, which was
classified in heading 6211, HTSUS;
2. the subject merchandise provides no protection against
the elements; HQ 952270, dated February 1, 1993,
wherein a men's jacket lacking a means of closure was
excluded from classification in heading 6203, HTSUS, is
cited;
3. GRI 1 supports classification in heading 6211, HTSUS;
4. the Guidelines for the Reporting of Imported Products
in Various Textile and Apparel Categories, CIE 13/88
(Guidelines) represent the present position of the
Customs Service; any deviation from the Guidelines is
only appropriate after a notice and a comment period.
ISSUE:
Whether the subject merchandise is classifiable as a men's
suit-type jacket in heading 6203, HTSUS, or in heading 6211,
HTSUS, as a men's other garment?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the terms of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
There are several plausible classifications for the subject
merchandise. The first plausible classification, heading 6201,
HTSUS, provides for among other things, men's overcoats, wind-jackets and similar articles. The Explanatory Notes to the
Harmonized Commodity Description and Coding System (EN) to
heading 6201, HTSUS, state that "[t]he provisions of the
Explanatory Note to heading 61.01 apply, mutatis mutandis, to the
articles of this heading". The EN to heading 6101, HTSUS, state
in pertinent part, "[t]his heading covers a category of .....
garments for men or boys, characterised by the fact that they are
generally worn over all other clothing for protection against the
weather". Secondly, heading 6203, HTSUS, provides for, among
other things, men's suits and suit-type jackets. The EN to
heading 6203, HTSUS, state that "[t]he provisions of the
Explanatory Note to heading 61.03 apply, mutatis mutandis, to the
articles of this heading". The EN to heading 6103, HTSUS,
provide a definition of "suit" and the required construction of a
suit jacket. They state in pertinent part:
This heading covers only men's or boy's knitted or crocheted
suits and ensembles, jackets, blazers, trousers, breeches
and shorts (other than swimwear) and bib and brace type
overalls.
(A) For the purposes of Chapter Note 3(a), it should be
noted that:
(a) the "suit coat or jacket" designed to cover the
upper part of the body has a full front opening
without a closure or with a closure other than a
slide fastener (zipper). It does not extend below
the mid-thigh area and is not for wear over
another coat, jacket or blazer; (Emphasis added)
(b) the "panels" (at least two in the front and two at
the back) making up the outer shell of the suit
coat or jacket must be sewn together lengthwise.
For this purpose the term "panels" does not
include sleeves, facings, or collar, if any;
(c) a "tailored waistcoat", whose front is made from
the same fabric as the outer surface of the other
components of the set and whose back is made from
the same fabric as the lining of the suit coat or
jacket, may also be included in the set.
Finally, heading 6211, HTSUS, which provides for, among other
things, other garments, a basket provision for garments not
elsewhere specifically provided for under the tariff, merits
consideration.
We agree with your assertion that the subject garment is not
classifiable in heading 6201, HTSUS, because it is a provision
reserved for garments considered as outerwear which offer
protection against the elements. As the subject garment is
neither made of a heavy weight outerwear fabric nor has a means
of closure to ensure protection against inclement weather, this
heading can be eliminated. This office however, disagrees with
your claim that the subject garment should similarly be precluded
from classification in heading 6203, HTSUS. Although you argue
that in HQ 954335, a garment similar to the subject garment was
classified in heading 6211, HTSUS, in the opinion of this office
the two garments are clearly distinguishable. The garment
addressed in HQ 954335 was a casually styled men's upper body
garment. The garment was described as featuring " a full frontal
opening without a closure, long sleeves, two side patch pockets
at the waist, a notched collar, lapels, two front panels and two
rear panels, no linings or interlinings". The subject garment on
the other hand, although bearing a little resemblance to the
garment in HQ 954335, is distinctly different. The subject
garment is not a casually styled garment, but has a more tailored
or formal appearance. The submitted garment features an outer
breast pocket, two interior breast pockets, an interior pocket
below the waist, suit-type exterior pockets at the waist (not
patch pockets), and a lining. This is hardly the garment which
was classified in HQ 954335.
You state that the Guidelines provide that a suit-type
jacket or blazer must feature a full frontal button or snap
opening. Additionally, you accurately note that the Guidelines
were published as a Federal Register Notice, Vol. 53. No. 249,
December 28, 1988, in order to provide notice to the importing
community of the appropriate category designations for garments
and other items included therein. Accordingly, you conclude that
as the subject garment lacks a "frontal button or snap opening"
the garment is not classifiable in heading 6203, HTSUS. We
bring to your attention however, the fact that you do not
accurately construe the method by which, or the circumstances by
which, those Guidelines are to be applied. The Federal Register
Notice to which you refer clearly and explicitly states the
following in the "Foreword":
....These guidelines do not purport to take into account
every possible fabric, construction, and styling
combination, since in wearing apparel especially, each
season brings new styles.... As such, these guidelines are
intended as indications of the types of construction and
styling most likely to be encountered. Certain types of
garments are so closely related in use though, that the
corresponding category designations seem to overlap. In
such situations it should be remembered that the guidelines
are to be used as an aid in determining the commercial
designation, and hence, the classification of an article.
(Emphasis)
It thus follows that although the Guidelines are often used
by Customs in those instances where a hybrid garment presents
itself for which no guidance is given in the Explanatory Notes,
the use of the Guidelines is optional. The intent of the
Guidelines is as an aid to be used when needed. Such is not
the case with the present merchandise. Not only does the overall
impression of the garment lend validity to classification in
heading 6203, HTSUS, but this classification is further supported
by the explicit terms of the EN to heading 6203, HTSUS. We do
not feel it necessary to go into explicit explanations regarding
the weight of the EN relative to the Guidelines as we feel that
it is commonly understood that while there is legislative history
supporting Customs use of the EN in interpreting the tariff, no
such legislative intent is attributable to the Guidelines. As
such, any notion that deviation from the Guidelines is requisite
of a public notice is completely erroneous. Furthermore, we
direct your attention to the following rulings (and applicable
rationale) which, in the final classification determination, did
not follow the Guidelines:
HQ 951405, dated July 20, 1992- in a discussion of whether
the garment was classifiable as a "blouse" or "jacket", a
determination was made that the proper classification of the
garment was as a jacket despite the terms of the Guidelines:
.... It is important, however, to remember that the
Guidelines are not hard and fast rules, but guidance in
drawing distinctions between classes of garments....
Although the garment at issue exhibits only one of the
features listed in the Guidelines, i.e., a heavy-duty
zipper, it possesses additional features which leads
Customs to conclude it is a jacket and will be worn as
such; (Emphasis)
HQ 951264, dated July 1, 1992- in a discussion of whether
the merchandise
was classifiable as an "other garment" or as a "brassiere",
a determination was made, based on a close reading of the
EN, that the merchandise was classifiable as a brassiere,
despite the terms of the Guidelines:
Customs frequently refers to lexicographic sources for
guidance in determining classification. Similarly
Customs will consider garment definitions as set forth
in the Textile Category Guidelines, CIE 13/88, dated
November 23, 1988. We note, however, that dictionary
definitions, particularly with regard to fashion items,
are often limited and sorely dated as it is impossible
to accurately reflect all the latest trends. The
Guidelines tend to be more detailed, but they too are
often limited and/or dated. Moreover, they are not
binding on Customs, but are merely intended to offer
guidance when classifying garments. With this in mind,
Customs will examine these sources for their
interpretive value when classifying garments, but will
recognize that classifications based on static, narrow
definitions may result in erroneous and dated
conclusions. Industry trends must be taken into
account because they reflect how a particular garment's
role may have expanded, narrowed or completely changed
in the fashion industry. Classification based on a
physical examination of an article, combined with
information as to how this garment is treated in the
trade and commerce of the United States, results in the
most accurate classifications; (Emphasis)
HQ 950974, dated April 7, 1992- in a discussion of whether
the garment was classifiable as "tights" or as "pants", a
determination was made that, despite the terms of the
Guidelines, the garment was classifiable as pants:
.... However, Customs does not classify garments by the
Guidelines, we classify according to the tariff and the
principles of classification.... (Emphasis)
Similarly, your argument that HQ 952270 addresses a garment
on point with the submitted garment has no weight. The garment
that was the subject of HQ 952270 was a true hybrid garment which
possessed features generally associated with both a shirt and a
jacket. For those reasons the Guidelines were consulted and it
was determined that the garment was not accurately described in
any heading other than heading 6211, HTSUS. As we have already
stated, but will emphasize again, the garment you have submitted
to us is a men's suit-type jacket in every way except for the
lack of buttons. This in itself will not preclude its
classification in heading 6203, HTSUS. In fact, the EN to that
heading explicitly state that a suit coat or jacket may or may
not feature a means of closure.
As such, this office finds that based on a GRI 1 analysis,
the subject merchandise is specifically provided for in heading
6203, HTSUS, in the provision for men's suit type jackets.
HOLDING:
Style number 1427-1, is classified in subheading
6203.31.0020, HTSUSA, which provides for men's or boys' suits,
ensembles, suit-type jackets, blazers, trousers, bib and brace
overalls, breeches and shorts (other than swimwear): suit-type
jackets and blazers: of wool or fine animal hair: other. The
applicable general rate of duty is percent 20.2 percent ad
valorem and the quota category is 433.
The designated textile and apparel category may be
subdivided into parts. If so, the 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 renegotiations and
changes, to obtain the most current information available, we
suggest you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your 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, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division