Reconsideration of New York Ruling N084077, dated April 12, 2010; classification of a men’s vest from China.

HQ H136897 July 16 2012 CLA-2 OT: RR: CTF: TCM H136897 RES CATEGORY: Classification TARIFF NO.: 6211.33.0054 Ted Murphy Baker & McKenzie LLP 815 Connecticut Avenue, NWWashington, DC 20006-4078 RE: Reconsideration of New York Ruling N084077, dated April 12, 2010; classification of a men’s vest from China. Dear Mr. Murphy: This is in response to your letter dated November 23, 2010, on behalf of Williamson-Dickie Manufacturing Company (“Williamson-Dickie”) for reconsideration of New York Ruling Letter (“NY”) N084077 issued on April 12, 2010, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a men’s vest. The merchandise in NY N084077 was classified under heading 6110, HTSUS. We have determined that NY N084077 was in error. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on December 28, 2011, in Volume 46, Number 1, of the Customs Bulletin. CBP received one comment requesting clarification of the action. The comment is addressed in the analysis section. FACTS: The subject vest, identified as “lot TE 424”, is composed of three layers of bonded fabric. The outer layer is a woven fabric that is 92% polyester and 8% spandex. The middle layer is composed of thermoplastic polyurethane and the inner layer is a knit fabric that is 100% polyester. The vest is sleeveless, has one zippered pocket over the left side of the chest, two waist-level pockets without zippers. A zipper closure runs from the bottom to the top of the front of the vest. There are also two elastic draw cords at the base of the vest with cord locks that allow a user to tighten or loosen the vest at waist level. ISSUE: Whether the men’s vest at issue is classified under heading 6110, HTSUS, as a vest that is knitted or crocheted or under heading 6211, HTSUS, as an “other garment of man-made fibers”? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” 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 GRI 2 through 6 may be applied in order. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS headings under consideration in this case are as follows: 6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: * * * 6211 Track suits, ski-suits and swimwear; other garments: The commenter asked that CBP clarify whether CBP is changing its interpretation of Chapter 60, Note 1(c) and to clarify the basis of the ruling here. CBP is not altering its interpretation of Chapter 60, Note 1(c). In NY N084077, the ruling based its decision to apply Chapter 60, Note 1(c) on the premise that the inner layer of fabric was a knit pile. However, CBP’s Laboratory and Scientific Services determined that the inner layer was instead a knit fabric with a brushed pile-like effect. CBP’s position on the issue of whether a fabric that is brushed to give a pile effect is considered a pile fabric for classification purposes has been addressed in numerous rulings. See, e.g., HQ 951374, dated October 30, 1992; HQ 952803, dated January 28, 1993; HQ 952804, dated January 28, 1993; HQ 953942, dated May 7, 1993 (revoking HQ 952803); HQ 953941, dated May 7, 1993 (revoking HQ 952804); HQ 952921, dated May 7, 1993; HQ 952924, dated May 7, 1993; HQ 960250, dated September 18, 1997; HQ 960548, dated September 18, 1997; HQ 959801, dated November 7, 1997; and HQ 960783, dated June 3, 1998. In the earlier rulings, CBP stated: [I]f during the weaving or knitting of a fabric, yarns are caused to project from the surface(s) (i.e., the base material) of that fabric creating a “pile” appearance, that fabric will be considered a pile fabric for the purposes of the HTSUSA, even if those yarns are subsequently subjected to a brushing process. However, if fabric is woven or knit without projecting yarns which create a “pile” surface or surfaces, and that “pile” appearance is later produced by a brushing, teasling, or similar process, then the fabric is not considered to be a pile fabric for the purposes of the HTSUSA. See HQ 951374, HQ 952803, HQ 952804, HQ 953942, HQ 953941, HQ 952921 and HQ 952924, supra. [CBP] has issued a number of rulings discussing a variety of fabrics which have set forth a precedence that the future state of the fabric is not determinative of its classification. In the analysis portion of these rulings it has been consistently stated that [CBP] will examine the process involved in the production of the fabric and the appearance of the fabric as the governing factors in ascertaining whether that fabric is classifiable as a pile fabric. In essence, the knitting process of the fabric must result in raised loops or floats which protrude from the surface of the base fabric. See HQ 960548, HQ 960250, HQ 959801 and HQ 960783, supra. It is CBP’s position that fabrics which have raised loops or floats created during the knitting process are classified as pile while the brushing of a fabric to create a “pile-like” effect that does not exhibit a pile construction at the time it leaves the knitting machine does not create a pile surface for classification purposes. Thus, Chapter 60, Note 1(c) does not apply here. A composite article governed by GRI 3(b) is classified according to the material that gives the article its essential character. An article of apparel that consists of multiple layers of fabric is classified based on the material of the outer layer, subject to any exceptions in the legal notes that direct otherwise or in instances where an article of apparel has parts or accessories which materially contribute to the article’s character or usefulness and impart the essential character. See Headquarters Ruling “HQ” 084262, dated June 21, 1989, and HQ 086504, dated December 27, 1990. In the case of the subject merchandise, classification is based on the outer layer of fabric because there are no other parts or accessories that materially contribute to the vests’ character or usefulness to an extent to impart the essential character over the outer layer of fabric. The outer layer of fabric is an artificial woven fabric with a composition that is 92% polyester and 8% spandex. A textile garment that is a men’s vest with an outer layer of woven fabric is classifiable in Chapter 62, HTSUS, as an article of apparel not knitted or crocheted, and specifically under heading 6211, HTSUS. As both polyester and spandex are both man-made fibers, the instant vest is specifically provided for under subheading 6211.33.00, HTSUS, as “[t]rack suits, ski-suits and swimwear; other garments: [o]ther garments, men’s or boys’: [o]f man-made fibers.” HOLDING: By application of GRI 3(b), the men’s vest, lot # TE 424, is classified under subheading 6211.33.0054, HTSUSA, as “[t]rack suits, ski-suits and swimwear; other garments: [o]ther garments, men’s or boys’: [o]f man-made fibers: [v]ests: [o]ther.” Articles classified under this subheading are subject to a column one rate of duty of 16 percent, ad valorem, and the visa category is 659. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/. 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, we suggest your client check the Textile Status Report for Absolute Quotas at www.cbp.gov close to the time of shipment to obtain the most current information available. EFFECTS ON OTHER RULINGS: The classification of the men’s vest merchandise in NY N084077, dated April 12, 2010, is revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division