CLA-2 CO:R:C:T 956795 SK

Steve Tabor
Aberdeen Sportswear, Inc.
350 Fifth Avenue
New York, N.Y. 10118

RE: DD 895944 (3/31/94) affirmed; classification of "Polar Fleece" upper body garment; double- fleece; elasticized bottom hem and wrists; partial front zipper opening; pouch pocket in front with two zippers; high collar; no hood; CIE Textile Category Guidelines, 13/88; HRL 088289 (2/11/91).

Dear Mr. Tabor:

On March 31, 1994, the Customs port at Ogdensburg, New York issued you District Ruling Letter (DD) 895944 in which a 100 percent knit fleece men's upper body garment was classified as a pullover under subheading 6110.30.3050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In your letter of April 22, 1994, you request a reconsideration of DD 895944, and maintain that the subject garment, referenced style 1201, is properly classifiable under heading 6101, HTSUSA, as a jacket. A sample of style 1201 was submitted to this office for examination.

FACTS:

Style 1201 is a men's long sleeved upper body garment constructed from 100 percent knit polyester which is heavily napped on both the inside and the outside surfaces. The double-faced fleece fabric is also synonymously known by the following registered trade names: "Polar Fleece"; "Polartec"; "Synchilla"; "Polarplus"; or "Bunting Fabric." Analysis by the New York Customs laboratory reveals that style

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1201 is constructed of fabric weighing 7.87 ounces per square yard. This type of fabric is available in different weights and is considered a lightweight fabric with a high warmth to weight ratio. Style 1201 has a partial front zipper opening which extends from the collar to the lower chest area. The garment possesses a convertible collar, two zippered pockets below the waist and an inset pocket on the left chest with a zipper closure. Narrow rib knit capping finishes the placket, collar, wrists and straight-hemmed bottom.

In DD 895944, style 1201 was classified under subheading 6110.30.3050, HTSUSA, which provides for, inter alia, men's or boys' sweaters, sweatshirts, pullovers, ... and similar garments, knitted ..., of man-made fibers. It is your assertion that this classification is incorrect and that style 1201 is properly classifiable under subheading 6101.30.2010, HTSUSA, as a jacket. You base this assertion on several factors, and state that: 1) style 1201 is made of a heavyweight fabric; 2) the garment is intended to be worn over a shirt; 3) garments made from this type of fabric are sold by other manufacturers and retailers as winter outerwear; and 4) style 1201 possesses four of the jacket features enumerated in the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (hereinafter cited as Guidelines), and thereby creates a presumption that it is classifiable as a jacket.

ISSUE:

Whether style 1201 is classifiable in heading 6110, HTSUSA, which provides for sweaters, pullovers, sweatshirts and similar articles, or under heading 6101, HTSUSA, which provides for, inter alia, men's or boys' jackets?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 6110, HTSUSA, provides for "sweaters, pullovers, sweatshirts, ... and similar articles." Pullovers are differentiated from jackets of heading 6101, HTSUSA, on the basis of how the garments are worn; pullovers may be worn either indoors or outdoors, while jackets are worn outdoors as protection against the elements over other outerwear. The determinative issue, therefore, is the manner in which this

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garment is intended to be worn. In making this determination, we will examine the physical characteristics of style 1201 as well as evidence of how garments substantially identical to style 1201 are treated in the trade and commerce of the United States. In Mast Industries, Inc. v. United States, 9 CIT 549, (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), the Court of International Trade held that if an article is designed, manufactured, marketed and used as nightwear, it is classifiable as such. The court recognized that consumers are likely to use garments as they are marketed to them. Based on the Mast Court's analysis, we find the manner in which other manufacturers and retailers advertise similarly designed garments, also made from "Polar Fleece," to be persuasive evidence of the intended use of this class or kind of garment.

In your submission to this office, you state that style 1201 is made from heavyweight "Polar Fleece" and that the garment is designed to be worn over a shirt as a jacket. You further state that this is the manner in which other manufacturers and retailers market these types of garments and "in no way can this [garment] be a shirt." As stated above, the New York Customs laboratory found the fabric used in the manufacture of style 1201 to weigh 7.87 ounces per square yard. This weight is well below the 10 ounces per square yard standard set forth in the Guidelines which is used as an indicator of a fabric's suitability for use in a jacket. Moreover, the Spring 1986 L.L. Bean Catalogue describes a garment almost identical in appearance to style 1201 as "lightweight" at 9 ounces per square yard with a "high warmth to weight ratio." The ad further describes the garment as "[P]erfect layering garments, we wear them over the thinnest polypropylene underwear in winter and alone against the skin the rest of the year."

Further evidence that the trade and commerce of the United States considers similarly styled garments constructed of "Polar Fleece" fabric or the like to be suitable for use indoors and outdoors (i.e., therefore meeting the definition of "pullover" for tariff classification purposes) is provided by the following:

* The Christmas 1991 L.L. Bean Catalogue shows photos of garments substantially identical to style 1201 and advertises them as "pullovers" and as a "great alternative to a wool ski sweater... ;"

* The December 1991 Land's End Catalogue describes a similarly styled garment as being suitable for use "[W]hether you're a skier or a couch potato" and describes the garment as a pullover;

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* The Fall 1987 Macy's Catalogue and the September 1987 Sears Catalogue depict similarly styled double-fleece pullovers being worn alone over the skin or over underwear;

* The Christmas 1994 L.L. Bean Catalogue advertises its similarly styled garments as "pullovers" and compares their comfort and versatility to that of a sweatshirt;

* The Christmas 1994 Land's End Catalogue advertises a "'Polartec' Pullover" and states that "this pullover can do about everything a sweater can, like provide comfy warmth indoors or out ... [S]kiers and other active folks love Polartec as insulation under outer layers. [B]ut considering how soft and inviting it is, you'll probably wear it around the house just as much." [emphasis added]

It is clear that garments substantially identical to style 1201 are treated in the trade and commerce of the United States as pullovers which are well-suited for use either indoors or outdoors, either layered or worn over the skin or underwear. Accordingly, classification is proper within subheading 6110.30.3050, HTSUSA, which provides for knit sweaters, pullovers, sweatshirts and similar articles of man-made fibers.

With regard to your argument that style 1201 is classifiable as a jacket of heading 6101, HTSUSA, because it possesses four of the jacket features enumerated in the Guidelines, we note that a garment will only be classified as a jacket on this basis so long as the result is not unreasonable. It is the opinion of this office that to classify style 1201 as a jacket, in direct contradiction of how this type of garment is recognized in the trade and commerce of the United States, would lead to an unreasonable result. The Guidelines create a rebuttable presumption that a garment possessing three or more of the enumerated jacket features is classifiable as a jacket. In the instant case, garments such as style 1201 are presented to consumers as pullovers suitable for use indoors and out and this fact effectively rebuts any presumption that style 1201 is a jacket. See Headquarters Ruling Letter (HRL) 950045, dated December 3, 1991, in which this office reached a similar conclusion.

We further note that if style 1201 were designed with a full frontal zipper, the classification result would be different. See HRL 088289, dated February 11, 1991, in which Customs discussed the distinctions between sweatshirts classifiable under heading 6110, HTSUSA, and sweatshirts with full frontal zippers which were held classifiable as jackets of heading 6101, HTSUSA. That ruling recognized that these two types of garments are perceived differently in the trade. This finding is

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corroborated in the Christmas 1994 L.L. Bean Catalogue which describes a double-fleece garment with a hood and a full frontal zipper as a "jacket" and a garment with a partial front zipper as a "pullover."

HOLDING:

DD 895944 is affirmed.

Style 1201 is classifiable under subheading 6110.30.3050, HTSUSA, which provides for "[S]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: of man-made fibers: other: other: other... other: men's or boys'," dutiable at a rate of 34 percent ad valorem. The applicable textile quota category is 638. The designated textile and apparel categories 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, to obtain the most current information available we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your 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


2 cc: Area Director, New York Seaport
1 cc: CITA