December 1, 2004 CBP Bulletin Notices on Men's Short Sleeve Oversized Nylon Pullover Garments and Certain Extruded Polyethylene or Polypropylene Mesh/Plastic

CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed rulings, or any party involved with a substantially identical transaction, should advise CBP by December 31, 2004, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in these notices.

CBP also states that these notices cover any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation or Modification of Five Classification Rulings

Men's Short Sleeve Oversized Nylon Pullover Garments. At issue are men's upper body garments identified as short sleeve pullover jackets. They are made of 100% woven nylon fabric and feature short sleeves, a short stand up collar, a partial front opening beginning at the neck and extending down for approximately five inches which is secured shut with a zipper, a tunneled hemmed bottom with an elasticized drawcord threaded through it, and a six inch long side vent with a zipper closure on the left side.

CBP is proposing to issue HQ 967188 in order to revoke NY K84208 and reclassify the garments either in HTS 6201.93.3000 as "other water resistant anoraks (including ski jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers (MMF)" or in HTS 6201.93.3511 as "other men's anoraks (including ski jackets), windbreakers and similar articles (including padded, sleeveless jackets), of MMF" rather than in HTS 6205.30.2070 as "other men's shirts of MMF."

CBP states that The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, set forth eleven criteria typically found on outerwear coats/jackets and further note that garments not possessing at least three of the listed features will be considered on an individual basis. Since the garments at issue possess one of the Guidelines jacket criteria (i.e., they have a drawstring waistband), the garments must be considered on an individual basis.

According to CBP, the subject garments' features and oversized cut cause the garments to have the character of wind-jackets. Therefore, the garments are precluded from classification as shirts of HTS 6205, pursuant to the Explanatory Notes (ENs) for heading 6205 which state in pertinent part that the heading does not cover garments having the character of windcheaters, wind jackets, etc. of heading 62.01, which generally have a tightening at the bottom.

Instead, the garments should be classified in HTS 6201.93.3000 if they pass the water resistance test specified in HTS Chapter 62, Additional U.S. Note (AUSN) 2 or HTS 6201.93.3511 if they do not pass such water resistance test.

proposed: 6201.93.3000 (cat 634), 7.1% or 6201.93.3511 (cat 634), 27.7%

current: 6205.30.2070 (cat 640), 29.1/kg 25.9%

Certain Extruded Polyethylene or Polypropylene Mesh/Plastic. At issue are (i) extruded polyethylene mesh or plastic to be used to package an Easter basket, to protect grape crops from damage by birds, etc. and (ii) extruded polypropylene mesh to be placed over trees and plants to protect vegetable and fruits from birds.

CBP is proposing to issue HQ 967346, HQ 967347, HQ 967349, and HQ 967348 in order to revoke NY C84049, NY G87431, NY D80028, and modify NY H88635, respectively, and reclassify the mesh/plastic in HTS 3926.90.9880 as "other articles of plastics and articles of other materials of headings 3901 to 3914" rather than in HTS 3920.10.0000 or in HTS 3920.20.0000 as other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of polymers of ethylene or of propylene

CBP states that "sheeting" is commonly known to be in the form of or suitable for forming into a "broad surface." In HQ 965889 (dated 03/17/03), CBP determined that the open spaces of a geotextile material were large enough that the material could not be considered to have a "broad surface." According to CBP, the subject mesh/plastic, like the geotextile material of HQ 965889, has open spaces and cannot be considered to have a broad surface. Thus, CBP states that the mesh/plastic lacks the continuity necessary to be classified as a sheet of plastics of heading 3920, and instead should be classified in HTS 3926.90.9880.

proposed: 3926.90.9880, 5.3%; current: 3920.10.0000 or 3920.20.0000, 4.2%

December 1, 2004 CBP Bulletin (Vol. 38, No. 49) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_12012004_no47/