CLA-2 CO:R:C:T 951755 jb
Alan R. Klestadt, Esquire
Suzanne B. Barnett, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017
RE: Modification of NYRL 870685 and binding classification for
boiled wool sweaters; subheading 6104.31.00, HTSUSA
Dear Mr. Klestadt and Ms. Barnett:
This is in response to your letter, dated April 30, 1992, on
behalf of your client, Mast Industries, Inc., requesting
reconsideration of New York Ruling Letter (NYRL) 870685, dated
January 27, 1992. In addition, you requested a binding
classification ruling on two other styles of apparel involving
the same issue. Samples were provided to this office for
examination and will be returned under separate cover.
FACTS:
All three of the submitted samples are constructed from 100
percent wool knit fabric that is specially treated prior to its
assembly as a garment. The procedure involves boiling the fabric
in water under very high temperatures. The resulting fabric
lacks the elasticity that is normally attributed to sweater
fabric.
1. Style XK9692W was the subject of NYRL 870685 which
classified the garment under the appropriate provisions
for women's knit jackets, of wool. The outer surface of
the fabric has more than nine stitches per two
centimeters measured in the horizontal direction. The
garment features a full-front opening with a six-button
closure that fastens from the neck to below the waist.
There is a front placket made from double-layered fabric
and a round neck with double-layered fabric at the front
only. The long sleeves are hemmed at the ends. There
are two front and two rear panels on the garment that
are sewn together lengthwise and a rear yoke.
Additionally, there is one rear panel and two front
panels at the bottom, which are double-layered fabric
panels sewn horizontally to the garment. You claim that
this particular style was, in effect, the subject of two
rulings and two different classifications. In NYRL
870685, classification was given in heading 6102,
HTSUSA, under the provision for woman's "overcoat---
windbreaker (or) similar article". In NYRL 871108,
dated February 25, 1992, you claim what was an
"identical" garment, with a different style number
(MXK799), was classified in heading 6104, HTSUSA, under
the provision for a woman's suit-type jacket".
2. Style XK9780W has an outer surface whose fabric consists
of nine or fewer stitches per two centimeters measured
in the horizontal direction. The garment has a full-
front opening with a six-button closure and a round
neckline. It also has long sleeves and two front
pockets that are below the waist. The neckline, the
front placket, sleeve ends and the bottom of the garment
are finished with jersey knit capping that is covered by
a decorative yarn. The garment consists of three
panels, two in the front and one in the rear. In
addition, you state that this particular garment will be
constructed from tighter boiled wool fabric than the
fabric from which the enclosed production sample was
produced.
3. Style XK9765W has an outer surface whose fabric has more
than nine stitches per two centimeters measured in the
horizontal direction. The garment features a full-
front opening with a five-button closure, a round neck
with a shirt-type knit collar, oversized armholes and
long sleeves that are finished with rib knit capping.
The bottom of the garment is hemmed. It extends from
the neck and shoulders to slightly below the waist. It
has three panels, two in front and one in back.
You claim that the garments should be classified under
heading 6110, HTSUSA, which provides for sweaters and similar
articles. Your arguments are as follows:
I. The garments are designed, marketed and sold as
sweaters.
II. The garments in issue are properly classifiable under
heading 6110, HTSUSA.
III. The boiled wool garments are principally used as
sweaters.
ISSUE:
Whether the subject merchandise is classifiable under
heading 6110, HTSUSA, which provides for sweaters and similar
articles, or under heading 6104, HTSUSA, which provides for
women's or girl's suit-type jackets?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff
Schedule of the United States Annotated (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.
Examination of Style XK9780W reveals that it has a different
fabric stitch count than the other two samples. You mention that
the actual garment will be constructed from a tighter boiled wool
fabric than the fabric from which the enclosed production sample
was produced. This proposed construction change may have
significance in determining the final ten digit item number under
the HTSUSA. Similarly, your claim that Style XK9692W was the
subject of two rulings and two different classifications, cannot
be verified in the absence of a sample of Style MXK799. As such,
classification of the garments will be based solely on the
submitted merchandise.
The boiled wool fabric used to make the three samples under
review is a descendant of the "loden cloth", which originated in
Tyrol, a section of Austria. As explained in George E. Linton's
The Modern Textile and Apparel Dictionary, (4th revised ed.,
1973), p.341-342, this fabric which was originally woven, is a
thick, fulled soft material that is quite waterproof without
being treated chemically, and is an ideal cloth for use in winter
wear garments such as sports clothes, finger-tip or full-length
coatings throughout the world. "Fulling" is described as a
process in the finishing of woolen cloth. The cloth is dampened
and beaten under heat, which causes shrinking, increases the
weight and obscures the weave of the cloth (Ibid p. 258).
More recently, these same effects, i.e., fabric strength and
stability, and warmth and protection from the elements for the
wearer, were achieved using knitted fabric that was especially
constructed and treated, as an alternative to the more
traditional woven fabric. The knitting process produced a "links
and links" fabric structure that was boiled in water at very high
temperatures. The fabric featured tightened knit stitches, great
structural stability and reduced horizontal elasticity. Garments
made with this fabric are called "loden coats", "loden jackets"
or more simply, "boiled wool jackets". They have become popular
with modern women because they combine function (warmth) with
fashion (made according to classic styling and intended to
coordinate with a dressy skirt).
I. The Garments are Designed, Marketed and Sold as Sweaters
In support of your claim you refer to Mast Industries v.
U.S., 9 CIT 549 (1985), in which the court established that
wearing apparel is to be classified in accordance with the manner
in which it is designed, marketed and sold. Though these
criteria are important to tariff determination, strict adherence
to this policy would greatly obstruct Customs' goal of insuring
national uniformity in tariff classification of imported
products.
You state that the importer has organized their purchasing
departments by product line. In this regard, though you
submitted documents purporting to show that the garments were
purchased by the department which is normally charged with buying
and selling sweaters, you submitted no evidence relating to how
the garments are marketed and sold in the United States at
retail. If Customs is to rely on the "method of trade" or the
"channels of trade" in its tariff determination, how the garments
are sold will be given as much importance as where the garments
are located (i.e., the particular department) in the store.
II. The Garments in Issue are Properly Classifiable under
Heading 6110, HTSUSA.
You refer to the Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN), concerning heading
6103, HTSUSA, which includes men's or boy's jackets and blazers.
Those EN apply mutatis mutandis to the articles of heading 6104,
HTSUSA, which include women's or girls' jackets and blazers. The
EN to heading 6103, HTSUSA, in describing the jacket portion of a
suit, state:
(A) -one suit coat or suit jacket the outer shell of which,
(exclusive of sleeves, and facings or collar, if any)
consists of at least four panels (two in front and two
at the back) sewn together lengthwise, designed to cover
the upper part of the body, with a full front opening
without a closure or with a closure other than a slide
fastener (zipper). It does not extend below the mid-
thigh area and is not for wear over another coat, jacket
or blazer. A tailored waistcoat may also be included.
The dictionary definitions for the competing designations of
this merchandise are delineated in Essential Terms of Fashion by
Charlotte Mankey Calasibetta, (1986), which states the following:
sweater- clothing for the upper part of the body, worn
either as an outer garment or under a coat or
jacket (p. 210)
jacket- item of apparel, usually shorter than hip-length,
designed to be worn over other clothing either
indoors or outdoors-- in the 20th century many
styles, for both formal and informal occasions,
were introduced for both men and women (p. 90).
coat- hip length to full-length outerwear with sleeves,
designed to be worn over other clothing (p.33).
It is evident by these definitions that while coats are
clearly outerwear and jackets are definitely worn over other
wearing apparel, sweaters are worn both ways- as outerwear or
under a coat or jacket.
The boiled wool jackets under review meet the definition for
jackets in that they are worn over other apparel and provide a
considerable degree of warmth and weather protection to the
wearer. Simultaneously, they qualify as jackets worn on more
formal occasions, allowing the wearer to display a fashionable,
high-quality, high-style jacket. Thus the garments achieve a
dual purpose by providing the wearer with warmth during the cool
months of Fall or Spring, and a more formal garment on dressy
occasions. Accordingly, we cannot agree with your assertion that
the garments only provide warmth for the wearer indoors and are
not intended to be worn as primary protection from the elements
outdoors.
You make reference to two Headquarters decisions which you
claim address the distinction between garments classified under
heading 6110, HTSUSA and heading 6104, HTSUSA. The first
decision, HQ 084183, dated August 3, 1989, ruled that a fine knit
cardigan-like garment with a full-front, deep V-neck opening
without means of closure, and two pockets below the waist, was
not a suit-type jacket because it lacked tailoring. Instead,
classification was given as a sweater-like garment, under heading
6110, HTSUSA.
The second decision, HQ 089578, dated October 8, 1991,
involved a cardigan-style upper-body garment with a lightweight
fabric, a deep v-neck full-front opening with a double breasted,
four button closure, long sleeves with rib knit cuffs, a
pronounced rib knit waistband and a partial rib knit neckline.
It was determined that the garment was not a suit-type jacket
because it lacked "tailoring" as defined by the Textile and
Apparel Category Guidelines, (Guidelines), C.I.E. 13/88, dated
November 23, 1988. It was also noted that features such as the
partial rib knit waistband and cuffs were more generally
associated with sweaters or similar apparel, than with suit-type
jackets. The garments were classified within heading 6110,
HTSUSA.
The samples described in the above referenced rulings are
considerably different than the garments now under review. In
those rulings, both samples featured finely knit cardigans with
deep V-neck fronts, comparable, except for the fabric stitch
count, to "athletic" or "letter" sweaters. As defined by
Calasibetta, op.cit.supra, page 211, these particular sweaters
were formerly worn by varsity sports team members in high schools
and colleges and are now copied for general sportswear. The
sweaters that were the subject of those rulings were properly
classified as sweaters and similar articles under heading 6110,
HTSUSA.
The boiled wool jackets presently at issue neither resemble
in significant features nor in characteristics the garments which
were the subject of the prior cited rulings. The fabric on the
boiled wool jackets is specially constructed and processed to
produce unique material for the successors of the Austrian loden
coats and jackets. This fabric purposefully lacks the horizontal
elasticity normally associated with sweaters or sweater like
garments. Additionally, the boiled wool jackets lack those key
features characteristic of the sweater-like garments in the
rulings; namely, rib knit waistband, neck and cuffs, and deep V-
neck fronts. By contrast, the three boiled wool jackets each
have a closure that extends to the top of the neck and their
fabric ends are finished with knit capping or decorative
stitching.
You further contend that the boiled wool jackets cannot be
suit-type jackets because they are not "tailored". In support of
this claim you state that the sample garments drape loosely on
the wearer's body and are oversized and bulky, lacking any form
fitting features. Though we agree that the sample garments do
not fit close to the wearer's body and lack the princess seams
and extra panels found on the traditional Austrian loden jackets,
we believe that the samples under review are meant to be an
imitation of those classic jackets, in that they replicate the
look of dressy, coordinated jackets which copy the special fabric
of the garments but not their close fitting look.
The Guidelines in the Forward, state in part:
These guidelines do not purport to take into account every
possible fabric, construction, and styling combination,
since, in wearing apparel especially, each season brings new
styles... As such, these guidelines are intended as
indications of the types of construction and styling most
likely to be encountered. Certain types of garments are so
clearly related in use, though, that the corresponding
category designations seem to overlap. In such situations
it should be remembered that the guidelines are to be used
as an aid in determining the commercial designation and,
hence, the classification of an article.
The Guidelines define "tailoring" as:
The shaping of a fabric into a garment so as to neatly fit
the contours of the body by means of cutting, seaming and
finishing. Fabrics with a high degree of elasticity, such
as some sweater knits, are capable of shaping themselves to
the contours of the body without additional work. Garments
made from such fabrics requiring minimal cutting and sweing
are not considered to be "tailored."
In actual application, "tailoring" may have a broader
meaning than that suggested by the Guidelines. The proper
application of the Guidelines was discussed in HQ 088077, dated
October 25, 1990, regarding the term "midthigh". That ruling
stated:
It should be borne in in mind that the guidelines are just
that, guides to ascertaining the common or commercial
designation of a textile article. C.I.E. 13/88 is not an
immutable document. It must be applied in a reasonably
prudent manner in order for the results obtained from its
application to be meaningful.
* * * *
We realize that the above liberalizes to a small degree the
description of sweaters contained in C.I.E. 13/88. However,
while adhering rigidly to a description in C.I.E. 13/88 may
promote uniformity of classification, which is extremely
desirable, it may also, on occasion, result in a garment
being misclassified. As stated above, C.I.E. 13/88 is
merely a guide to enable Customs to determine the common and
commercial identity of a garment and to classify it
accordingly.
As is stated in the Reader's Digest Complete Guide to Sewing
(1985), p. 360, "tailoring is just a refinement of standard
sewing procedures, aimed at building permanent shape into the
garment." These procedures may vary from basic, simply sewing
edges and pressing them down, to complex construction techniques
involving adding darts, princess seams and extra panels.
In George Linton's The Modern Textile and Apparel
Dictionary, p. 567, the concept of a tailored garment is broken
down into two separate aspects- tailored styling and tailored
workmanship. The former refers to apparel that is form fitting,
with basic style lines used in men's business suits. The latter
refers to the precision and finish of the seams and the
stitching. Technical considerations such as the spacing and the
size of the stitches, the finishing of the seams so that no raw
edges show and the pressing of the seams to insure a smooth
silhouette, are the main considerations here. In summary, the
dictionary states that garments may be tailored relative to
style, but if there are exposed edges, these articles are not
considered tailored relative to workmanship. Inversely, a
garment may be tailored relative to workmanship but not to
styling.
As such, we believe that the sample garments are "tailored"
within the more general meaning of the term expressed in the
sewing book and in Geoege Linton's dictionary. The garments
possess both styling and workmanship in that they are
professionally sewn and finished and have the basic fashion lines
of a woman's box-type jacket. We are also of the opinion that
the relatively rigid boiled wool fabric gives the jacket the
"look" of a more tailored garment. To limit the terms "tailored"
to mere form-fitting apparel, is contrary to the common
commercial understanding of the word. The sample garments are
complex in construction, even though they are not "form-
fitting". Unlike sweaters, which are more basic garments, the
jackets are styled and constructed with skill. They thus meet
the criteria for tailored garments.
III. The Boiled Wool Garments are Principally Used as Sweaters
Much emphasis is placed upon the court's decision in
Pollak Import Export Corp. v. United States, Slip. Op. 92-12
(February 14, 1992), which determined that the boiled wool
jackets were not outerwear coats. That case however, was decided
under the previous tariff, the Tariff Schedules of the United
States, TSUS. At that time the TSUS only allowed a limited
classification choice between "coats" or "other" for the
statutory breakout at the five digit level. In an attempt to
classify the garments, the court determined that the tariff
provision for coats was a use provision and that the chief use of
imported merchandise was the principal use. As such, the court
held that the common meaning of "coat" did not encompass jackets,
and that the garments which were the subject of that action were,
in fact, jackets. Consequently, the boiled wool garments were
given the classification for "other"- the only choice remaining.
Since that time the HTSUSA has replaced the TSUS.
Contemporaneously, several specific headings and statutory
breakouts were added; among them, those addressing suit-type
jackets and blazers. These provisions are pertinent to the
classification of the boiled wool jackets under review.
It is Customs position that all three styles submitted are
classified in heading 6104, HTSUSA, under women's suit-type
jackets, and that NYRL 870685 should be modified accordingly to
reflect the change in classification from heading 6102, HTSUSA,
to 6104, HTSUSA.
HOLDING:
The merchandise at issue, Styles XK9692W, XK9780W and
XK9765W, are women's boiled wool, knit jackets and are classified
in subheading 6104.31.00, HTSUSA, the provision for women's suit-
type jackets and blazers: of wool or fine animal hair. Style
Xk9692W, the subject of NYRL 870685 should be modified and
reclassified from subheading 6102.10.00, HTSUSA to subheading
6104.31.00, HTSUSA. The applicable rate of duty is 68.3 cents
per kilogram plus 20 percent ad valorem. The textile category is
435.
In order to ensure uniformity in Customs classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), NYRL
870685 is modified to reflect the above classification effective
with the date of this letter, If, after your review, you
disagree with the legal basis for our decision, we invite you to
submit any arguments you might have with respect to this matter.
Any submission you wish to made should be received within 30 days
of the date of this letter.
This modification is not retroactive. However, NYRL 870685
will not be valid for importations of the subject merchandise
arriving in the United States after the date of this notice. We
recognize that pending transactions may be adversely affected
(i.e. merchandise previously ordered and arriving in the United
States subsequent to this modification will be classified
accordingly). If it can be shown that your client relied on NYRL
870685 to his detriment, you may apply to this office for relief.
However, you should be aware that in some instances involving
import restraints, such relief may require separate approvals
from other government agencies.
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 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
restraint (quota/visa) categories, your client should contact the
local Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division