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HQ 961390





April 19, 2001

CLA-2 RR:CR:TE 961390 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6113.00.9030

Robert T. Stack, Esq.
Thompkins & Davidson, P.C.
1515 Broadway
New York, NY 10036

RE: Outer shell of a textile flock over polyvinyl chloride plastic backed with knitted man-made textile fabric; lining of woven nylon quilted to polyester insulation: Plastic and textile combinations: Outer surface: Legal Note 2(a)(5) to Chapter 59; EN Chapter 39; EN Chapter 59

Dear Mr. Stack:

This letter is in response to your request of January 14, 1998, on behalf of your client Essex Manufacturing, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a ladies jacket imported from China. A sample was submitted with your request. It is returned under separate cover.

FACTS:

The submitted sample is a ladies jacket, designated as style 2200. It is mid-thigh length. The jacket features a full front zippered opening which is covered by a placket (storm flap) with three snaps, a self fabric hood with a drawstring closure, long sleeves with turn-up cuffs, two inset slant chest pockets, two lower double-entry patch pockets with snapped flaps, and an inner drawstring at the waist. The shell is said to be cellular polyvinyl chloride (PVC) material, the outer surface (face) of which is imitation suede flock; the backing is knitted man-made textile fabric.

The composition and sequence of production of the flocked shell is described as follows:

1. PVC foam is created by placing PVC on release paper and foaming in the oven;

2. Adhesive is spread on foam and the knit reinforcement fabric is laminated to foam;

3. The PVC is peeled off release paper;

4. The PVC is coated with polyurethane;

5. The coated PVC is then sent to flocking factory where it is coated with acrylic latex and covered with rayon flock in flocking chamber;

6. Finishing operations, including drying, cooling and shrinking to desired wrinkled pattern take place.

We are advised that the above operations result in a shell material that consists of six layers, as follows (exterior to interior);

Rayon flock
Acrylic adhesive
Polyurethane
Vinyl foam
Vinyl adhesive
Knit fabric backing.

The vinyl foam weighs approximately 150 grams per square meter, the knit fabric weighs approximately 80 grams per square meter, and the rayon flocking weighs approximately 48 grams per square meter; the overall weight of the shell material is approximately 356 grams per square meter.

The processes described above result in a finished product consisting of an outer/exterior layer of textile flock which has been joined by adhesive to a foamed PVC, which, in turn, has been joined by adhesive to a knit man-made fiber fabric.

ISSUE:

What is the proper classification for the ladies jacket? Is it an article of heading 6113 or of heading 3926, HTSUS?

LAW AND ANALYSIS:
a. The outer layer of the jacket is a textile fabric laminated with plastic (PVC) which has been covered with textile flock, and is classified under Chapter 59.

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined
according to the terms of the headings of the tariff schedule and any relative section or chapter notes. Since the outer layer is composed of a textile and plastic combination we focus upon Chapter 39 which covers plastics and articles thereof and Chapter 59 which covers impregnated, coated, covered or laminated textile fabrics.

We begin our analysis with a review of Section VII which encompasses Chapter 39. Section VII deals with plastics and articles thereof, rubber and articles thereof. There are no applicable Section notes. Next we review Chapter 39 (plastics and articles thereof). Chapter Note 2(m) states that the chapter does not cover goods of Section XI (textiles and textile articles). The Explanatory Notes to the Harmonized Commodity Description and Coding System (“ENs”), which represent the official interpretation of the tariff at the international level, facilitate the classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes to Chapter 39 state that the classification of plastic and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.

Note 1(h) to Section XI (textiles and textile articles) states that the section does not cover woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39. Thus it is necessary to determine what plastic covered or laminated fabrics are covered by Chapter 39.

The ENs to Chapter 39 state that the following plastic and textile combination products are covered by Chapter 39:

(a) Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics;

(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour;

(c) Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30° C;

(d) Plates, sheets and strip of cellular plastics combined with textile fabrics, felts or nonwovens, where the textile is present merely for reinforcing purposes.

In this respect unfigured, unbleached, bleached or uniformly dyed textile fabrics, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, are regarded as having a function beyond that of reinforcement.

It is claimed that although the EN goes on to note that where there is a textile fabric on both faces, the plates, sheets and strip of cellular plastics are excluded from Chapter 39 has no relevance in the instant case because flock does not constitute a fabric. In support thereof you cite a number of cases which hold that the addition of flock, which is not a fabric, to a plastic does not change the status of the plastic material. You go on to state "(t)he EN expressly states that uniformly dyed textile fabrics applied only to one face are regarded as merely for reinforcing purposes."

We agree that if the textile fabrics making up the jacket were either; (1) entirely coated or covered on both sides with plastics and such coating or covering could be seen with the naked eye, or (2) plates, sheets and strips of cellular plastics combined with textile fabrics, felt or nonwovens, where the textile is present merely for reinforcing purposes, the plastic and textile combination would be covered by Chapter 39. However neither is the case here.

(1) As you stated in your submission, the jacket is "composed of a shell of cellular polyvinyl chloride ("PVC") plastics material and a nylon lining quilted to polyester batting. The cellular polyvinyl chloride has a knit backing and a flocked face." You do not claim that the textile fabrics making up the jacket are coated or covered on both sides with plastics. In the instant case, the PVC only covers one side (the top surface) of the knit fabric backing making up the shell of the jacket. Therefore the textile fabric making up the shell of the jacket is not covered with plastics on both sides. In addition, the jacket is made up of a number of textile fabrics in addition to the knit fabric backing of the shell. The jacket contains a lining that is composed of woven nylon fabric that has been quilted to polyester batting for insulation. The lining is composed entirely of textile fabric. This textile fabric making up the lining is neither embedded in plastics or entirely coated or covered on both sides with such material.

(2) The PVC jacket shell is completely covered with textile flock. You contend that the knit fabric is merely reinforcement; and since the flock is not a fabric, it fits into the plastic and textile combination products classified in Chapter 39.

As we stated above, the jacket is made up of a number of textile fabrics in addition to the knit fabric backing of the shell. The jacket contains a lining that is composed of woven nylon fabric that has been quilted to polyester batting for insulation. The lining is composed entirely of textile fabric. It provides warmth, insulating and
protecting the wearer against cold weather. The fabric comprising the outer shell of the jacket does not squarely meet the description in (d) of the Chapter 39 Ens cited above, because the plastic is covered with another material (the flock) and based on the analysis which follows, Customs believes it is properly classified as a fabric of 5907, and as such is excluded from Chapter 39, by virtue of Note 2(m), Chapter 39.

We note that Note 1(h) does not preclude the classification of the outer layer material in Section XI.

Next, the governing notes direct us to Note 3 to Chapter 56. Note 3 applies to felts and nonwovens coated or laminated with plastics. Since the material at issue does not involve felt or nonwoven material, Note 3, Chapter 56 is inapplicable.

Note 2(a) to Chapter 59 states that Heading 5903, HTSUS, applies to textile 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) other than the following six exceptions:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60): for the purpose of this provision, no account should be taken of any resulting change in color;

(2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30°C (usually chapter 39);

(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);

(4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60);

(5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39); or

(6) Textile products of heading 5811.

The subject material seems to be described, at least in part, in exemption 5 above. We note however that the nature of the material (knit, cellular plastics, flock) is not
described Note 2(a) above. Although the knit backing fabric is combined with a sheet of cellular plastics, the plastics is covered with flock. The flock serves as the covering or coating material of the finished fabric.

Heading 5907 covers textile fabrics that have been impregnated, coated or covered, with materials other than plastics or rubber, provided the impregnation, coating or covering can be seen with the naked eye.

ENs to Heading 5907, HTSUS, specifically lists flocked fabrics stating:

The fabrics covered here include:

(G) Fabric, the surface of which is coated with glue (rubber glue or other), plastics, rubber or other materials and sprinkled with a fine layer of other materials such as:

(1) Textile flock or dust to produce imitation suedes

The jacket at issue is constructed of a knit fabric, covered with a cellular plastic, which is itself covered on the outside surface with textile flock to produce imitation suede. The fabric making up the shell of the jacket therefore meets the description of a textile fabric otherwise impregnated, covered or coated of Heading 5907, HTSUS. Accordingly, the shell of the subject jacket is classified as a fabric under Heading 5907, HTSUS. We note that as the textile and plastic combination is found to be classifiable in Chapter 59, it is excluded from classification in Chapter 39.
b. The jacket is considered a garment made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907 and classified under Chapter 61.

Having found that the shell of the jacket composed of a knit fabric, covered with PVC, sprinkled with textile flock to produce imitation suede is classified under Heading 5907, HTSUS, the next question is whether the jacket, which also contains a woven rayon lining backed with batting should be considered an garment made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907?

The GRIs direct in the event that 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 GRIs may then be applied. GRI 2(b) mandates that the classification of goods consisting of more than one material shall be determined according to the principles of GRI 3. Since the jacket consists of both woven, knit, and nonwoven textile materials, the merchandise must be classified according to the principles of GRI 3.

GRI 3 describes a hierarchy of methods of classifying goods which fall under two or more headings. The first method of classification is provided in GRI 3(a), under which the heading which provides the most specific description is to be preferred to a heading which provides a more general description. Explanatory Note III to Rule 3(a). When two headings each refer to a part of materials in the composite goods, however, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the other. Explanatory Note V to Rule 3(a). In such circumstances, the classification of such goods shall be determined by GRI 3(b) or (c). Accordingly, we first apply GRI 3(b) to the present case.

GRI 3(b) provides that composite goods consisting of different materials are to be classified as if they consisted of the material which gives them their “essential character”. Explanatory Note VII to Rule 3(b). Thus, the question is whether the woven knit or nonwoven textile component or plastic component gives the jacket its essential character. Essential character may be determined by the nature of the material, its bulk, quantity, weight, value or by the role of a material in relation to the use of the goods. Explanatory Note VIII to Rule 3(b).

Customs has taken the position that the outer layer shell fabric generally imparts the essential character to a garment. No distinction has been made between a garment with an outer layer of purely textile material and an outer layer of a textile fabric combined with plastic. It is Customs position that the flock covered PVC coated knit fabric of the shell of the jacket imparts its essential character.

First, we considered the importance of the outer layer fabric of the jacket. Inspection of the jacket reveals that the flock covered PVC coated fabric component constitutes a majority of the weight of the jacket. It provides the jacket with its shape, form and identity. It provides durability and strength to the jacket. The outer layer of the jacket provides the aesthetic appeal of the article. The suede-like look of the outer layer provides an initial visual impact and makes the jacket more marketable since it gives the appearance of a more expensive garment.

Consideration was also given to the importance of the insulation provided by the lining material. The insulation does increase the usefulness of the jacket. However after reviewing all these factors, it is Customs’ position that the flock covered plastic coated fabric component gives the jacket its essential character.

It is therefore classifiable as a garment made up of knitted or crocheted fabrics of heading 5903, 5906, or 5907. Inasmuch as the garment does not have an outer surface impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric, the jacket is classifiable under subheading 6113.00.9030, HTSUSA, the provision for “Garments, made up of
knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other: Coats and jackets: Other: Women's or girls."

HOLDING:

The ladies jacket identified as style 2200 is classified in subheading 6113.00.9030, HTSUSA, the provision for “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Other: Coats and jackets: Other: Women's or girls." It is dutiable at the column one rate of 7.2 percent ad valorem, and the textile category is 635.

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 you 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) categories, you 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


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