CLA-2 CO:R:C:T 951629 jb
Gail T. Cumins, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004
RE: Boy's finely knit cardigan; not a jacket, under heading
6101, HTSUSA; classification as sweater-like garment,
heading 6110, HTSUSA
Dear Ms. Cumins:
This is in response to your letter, dated April 20, 1992, on
behalf of your client, Baby Togs, Ltd., requesting the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), of a boy's finely knit cardigan. A
sample was provided and, as per your request, will be returned
under separate cover.
FACTS:
The merchandise at issue, style 1234, is a boy's, 70 percent
polyester, 30 percent cotton cardigan, constructed from finely
knit French terry fabric, which exceeds nine stitches per two
centimeters in the horizontal direction. The garment has a full
front three button opening that fastens left over right. Other
features include a deep V-neck, long sleeves, shoulder pads, and
ribbing at the neck, front opening, sleeve cuffs and bottom.
Style 1234 will be imported from the Philippines, in boys' sizes
two to four and four to seven.
ISSUE:
Whether the garment is classifiable as a sweater-like
cardigan under heading 6110, HTSUSA, or as a jacket, under
heading 6101, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified solely on the basis of
GRI 1, the remaining GRI will be applied in the order of their
appearance.
You argue that the submitted article manifests predominant
features which characterize it as a jacket, classifiable under
heading 6101, HTSUSA. These features are as follows:
1. The fabric of the garment, "French terry" knit, is a
specialized type of knit terry fabric, providing both
warmth and wind resistance. In support of this claim
you refer to HQ 088424 and HQ 088259;
2. The garment has applied cuffs and waistband;
3. The garment has large jacket/coat style buttons as its
front closure
You add that, the fact that this garment is V-necked does
not preclude classification as a jacket, as past Customs rulings
have acknowledged that factor as being not determinative when the
overall design and appearance of the garment is that of a jacket.
You conclude that when all the factors which are present in this
garment are taken together, it becomes "abundantly clear" that
the subject garment is one that provides warmth and wind
resistance similar in styling to light weight jackets and is
commercially recognizable as such.
The features to which you refer, in support of the claim
that the submitted article is a jacket, derive from the jacket
features enumerated in the CIE Textile Category Guidelines
(Guidelines). As per the Guidelines these features are:
appropriate fabric weight, full or partial lining, lapels, back
vents or pleats, pockets at or below the waist, specialized
styling or tailoring and heavy duty zipper or toggle closure.
We do not agree with your argument that the submitted
garment has three jacket features for the following reasons:
1. Nowhere within the parameters of the Guidelines is
French terry fabric listed as a jacket feature.
The cases you cite in support of the claim that it is
the presence of the terry fabric which was a significant
factor in determining that the garments in the cited
rulings were jackets, is a partial reading of those
cases. Though both HQ 088424, dated February 26, 1991,
and HQ 088259, dated March 12, 1991, recognize the fact
that the French terry fabric provides warmth and
protection from the elements, those cases also stress
that the garments share features generally found on many
garments commercially recognized as jackets. Thus it is
a combination of the styling and commercial perception of
the garment, as well as the fabric, upon which those
decisions are based.
2. Applied cuffs and waistband are not features exclusively
found on jackets. Furthermore, cases such as HQ 088482,
dated May 13, 1991, HQ 950045, dated December 3, 1991,
and HQ 084972, dated October 12, 1989, show that features
enumerated in the Guidelines as jacket features, have
also been found on sweaters. Again, what proved to be
decisive factors was the styling and commercial
perception of the garment.
3. The buttons found on the front closure of the garment are
not considered excessively large, typical of coat
closures. The buttons measure 3/4-inch in diameter; they
are typical sweater buttons.
It is evident that what has remained uniform throughout
Customs' analysis, is the finding that certain factors, more than
others have been determinative in the sweater versus jacket
issue. In sum, these factors are:
a. the look of the garment
b. how the garment is worn
c. commercial perception of the garment in the retail trade
and domestic marketplace
In memorandum file 082943, dated November 29, 1988, giving
directions to our field offices, this office outlined and
clarified the characteristics of a garment very similar to the
disputed article. That memorandum laid the foundation for the
classification of finely knit, sweater-like cardigans of heading
6110, HTSUSA. The garment was not a sweater, as the term is
defined by Statistical Note 3, to chapter 61, because it was not
constructed with nine or fewer stitches per centimeter measured
in the horizontal direction. The issue was whether, because the
garment did not meet the definition of a sweater, it was
precluded from classification in heading 6110, HTSUSA, and was
instead, more specifically provided for in heading 6102, HTSUSA.
The submitted sample, similar to the garment in 082943, is -
not one of the garments enumerated in the jacket headings. The
issue therefore, is whether it is a garment similar to a
windbreaker (the named garment in 6101, HTSUSA, it comes closest
to being), or a garment similar to a sweater in heading 6110,
HTSUSA.
As was stated in 082943:
Classification of an article must begin at the four digit
heading level, and, following the hierarchical system of
classification embodied in the HTSUSA, the article must then
be classified under the appropriate six and then eight digit
subheadings, and finally under the proper statistical
annotation. Once it is determined that a garment is
classifiable under one four digit heading, it may not be
classified under a different four digit heading because, for
one reason or another, a subheading or a statistical
annotation does not seem appropriate.
In this situation, while there is a statistical note which
states what the statistical provisions for "sweaters"
includes, that note does not (and at that level can not)
control the definition of a sweater at the four digit
heading level. Conceivably, a garment may be commonly and
commercially known as a sweater and yet not fall within the
requirements of the statistical note for inclusion under a
sweater annotation.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, state that heading 6110, HTSUSA,
"covers a category of knitted or crocheted articles, without
distinction between male or female wear, designed to cover the
upper parts of the body (jerseys, pullovers, cardigans,
waistcoats and similar articles)".
Cardigans are defined as follows:
1. A sweater or knitted jacket opening down the front.
Webster's II New Riverside University Dictionary, 1984,
p.230. Also, the American Heritage Dictionary, Second
College Edition, 1982, p.240.
2. A knitted woolen jacket or sweater, collarless and open
in front. The Random House College Dictionary, 1973,
p.203.
3. A sweater style, usually a 3-button coat sweater with
either a V or round neck. There are also cardigan
jackets made of a woolen or worsted fabric. The Modern
Textile and Apparel Dictionary, 1973, p.79.
The definitions of a cardigan serve only to show that
a cardigan may be a sweater, or may be a jacket. Cardigan refers
to the styling of the garment; it is not dispositive as to its
classification.
The EN applicable to heading 6101, HTSUSA, do not expound
on the heading description, other than to explain that the
garments are generally worn over other clothing for protection
against the wearer.
In both the submitted garment and 082943, the sample
garments are clearly cardigan sweaters or articles similar to
cardigan sweaters. The knit construction and relatively
lightweight fabric are indications that the garments would be
worn over other garments for warmth only and not in the manner of
a windbreaker. Considering the deep v-neck and lack of collar,
the submitted garment is not similar to overcoats, carcoats,
capes anoraks (including ski-jackets), windbreakers and similar
articles.
In HRL 088482, dated May 13, 1991, Customs reaffirmed its
memorandum, 082943. In HRL 088482 the submitted sample was a
woman's, cotton, knit cardigan with a five button full front deep
V-neckline opening. A placket extended completely around the
front opening and neckline. Customs held that for the garment to
be classifiable as a jacket, it must be one of the named
garments, i.e.: overcoats, carcoats, capes, anoraks (including
ski-jackets), windbreakers and similar articles, knitted or
crocheted.
HRL 088482 specifically stated:
Considering...the deep V-neck opening, and the lack of a
collar, it does not appear to be similar to any of the named
garments. Accordingly, it is not classifiable as a coat or
jacket.
However, the submitted sample is described by Heading 6110,
HTSUSA, which provides for "sweaters, pullovers,
sweatshirts, waistcoats (vests) and similar articles,
knitted or crocheted." The submitted sample resembles a
sweater in both appearance and use. Since the subject
garment is not described in two or more provisions and only
consists of one material, the classification of the instant
garment uner Heading 6110 is required by GRI 1.
Under Heading 6110, sweaters are provided for only at the
statistical (10 digit) level. In this regard, Statistical
Note 3, Chapter 61, Section XI, HTSUSA, defines sweaters as
follows:
For the purpose of this chapter, statistical provisions
for sweaters, include garments, whether or not known as
pullovers, vests or cardigans, which are constructed
essentially with 9 or fewer stitches per two
centimeters measured in the horizontal direction.
The sample in all respects, except for stitch count, is a
sweater. Since the sweaters are only provided for at the
statistical (as opposed to the legal) level, Statistical
Note 3 prevents the classification of the garment under an
annotation for sweaters. As a result, the garment is
classifiable under a basket provision for women's or girls'
other knit cotton articles which are similar to sweaters, in
subheading 6110.20.2075, HTSUSA.
The look of the garment and how it is worn determines
Customs classification. Like the garments in both HRL 082943 and
088482, the submitted sample is worn and used as a sweater and
has all of the characteristics of a sweater, except for the
stitch count. It has a deep V-neck, a three button front
opening, and it is knit. The garment is worn in the same manner
as a sweater, i.e., over a shirt, indoors. Its appearance does
not indicate use as a jacket, or windbreaker, to be worn outdoors
on a day on which it is too cold and windy to wear a sweater.
Though not determinative, among the factors to be considered is
that the submitted garment does not have a neck covering to offer
protection against the elements. Since the fabric lacks the
appropriate stitch count, it is a sweater-like cardigan,
classifiable under heading 6110, HTSUSA.
It is our opinion that for the following reasons the
submitted sample is a sweater-like garment:
1. the appearance of the garment
2. the use of the garment
3. commercial perception of the garment in the retail trade
and domestic marketplace
HOLDING:
Style 1234 is classifiable in subheading 6110.30.3050,
HTSUSA, as sweaters, pullovers, sweatshirts, waistcoats (vests)
and similar articles, knitted or crocheted, of man-made fibers,
other, other, other, other, other, men's or boys'.
The applicable rate of duty is 34.2 percent ad valorem and the
textile category is 638.
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, to obtain the most current information available, we
suggest that your client 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) and the local
restraint (quota/visa) categories, you should contact your client
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