The tariff classification of wheel chair capes from Canada

N237689 February 12, 2013 CLA-2-62:OT:RR:NC:N3:357 CATEGORY: Classification TARIFF NO.: 6202.13.4020; 9817.00.96 Mr. Jason Ford Dominion Customs Consultants Inc. 1595 16th Avenue Suite 202 Richmond Hill, Ontario L4B 3N9 Canada RE: The tariff classification of wheel chair capes from Canada Dear Mr. Ford: In your letter dated January 15, 2013, on behalf of Silvert’s Stores, you requested a tariff classification ruling. The samples you submitted are being returned. The first item, part number 27210, is described as a “Water Repellent Open Back Cape with Hood.” It is made from a 100% nylon woven ripstop fabric with a 100% polyester mesh lining. It has a partial front opening with a zipper closure, a kangaroo pocket below the zipper, a permanent hood, long sleeves with rib knit cuffs and two back panels that cross over and are secured by three snaps, one connecting to the hood and two at the right shoulder. The front length is approximately 38”, while the back length is approximately 29”. The second item, part number 27000, is described as a “Wheel Chair Cape with Hood.” It has a shell made from a 65% polyester/35% cotton woven fabric with a 100% polyester knit pile lining. This item has a full front opening with a zipper closure and an attached, lined hood and is sleeveless. Although you stated in your letter that this article has an open back, the sample has two back panels fully sewn together lengthwise. We also note that the literature you provided does not indicate an open back for this item. The front length is approximately 41”, while the back length is approximately 21”. You stated in your letter that the back is shorter on these garments to prevent interference with the wheels of a wheelchair. Gender identification of woven garments is governed by Harmonized Tariff Schedule of the United States (HTSUS) Chapter 62 Legal Note 8, which indicates that the direction of closure will generally determine whether a garment is classified as men’s or women’s, unless the cut clearly indicates otherwise. In cases where the gender cannot otherwise be determined, garments are to be classified in the headings covering women’s or girls’ garments. In the case of garments with a zipper closure Customs and Border Protection has held that, unlike buttons or snaps, the pull is a neutral closure and is therefore not dispositive of a garment’s gender identity. As these garments are not clearly identifiable as men’s, they are therefore classifiable in the HTSUS subheading for women’s. The applicable subheading for part number 27210 and part number 27000 will be 6202.13.4020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other women’s overcoats, car coats, capes, cloaks and similar coats, of man-made fibers. The rate of duty will be 27.7 percent ad valorem. Regarding your claim of duty free treatment under 9817.00.96, HTSUS, for these items, the fact that they are more than a foot shorter in the back and the placement of the closures are consistent with their being specially designed for use by those in wheelchairs.  Due to their intended use in cold and/or rainy weather, we believe it would be quite unlikely that they would be purchased by or for someone with an acute or transient disability per HTSUS Chapter 98, Subchapter 17, U.S. Note 4-b-i.  On that basis a secondary classification will apply for these items in 9817.00.96, HTSUS, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped (except articles for the blind), free of duty and user fees (if any).  Note that the requirement that the importer prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010.  Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements or countervailing or dumping duties.                               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 World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions specifically regarding the classification in 9817.00.96 of these items, contact National Import Specialist J. Sheridan at 646-733-3012.  If you have any other questions regarding the ruling, contact National Import Specialist William Raftery at (646) 733-3047. Sincerely, Thomas J. Russo Director National Commodity Specialist Division