OT:RR:CTF:FTM H270389 PJG
David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Modification of HQ 950007, HQ 960960, NY N257834, NY N257469, NY N243946, NY N242436, NY N235714, NY N208296, NY N173438, NY N138899, NY N138900, and
NY N043115; revocation of NY N255267 and NY N254620; tariff classification of garments with overlays
Dear Mr. Murphy:
On October 4, 1991, U.S. Customs and Border Protection (“CBP”) issued to you Headquarters Ruling Letter (“HQ”) 950007 with respect to Kobra Trading International Ltd. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of two women’s knit pullover garments with woven fabric overlaid fronts. We have since reviewed HQ 950007 and determined that while the classification provided is correct, there is an in error with respect to the General Rule of Interpretation (“GRI”) citation set forth in the Holding section of the ruling. Rather than referencing GRI 3(b), CBP should have cited GRI 1, consistent with the analysis provided in the Law and Analysis section of the ruling. Accordingly, HQ 950007 is modified.
For the reasons set forth below, we are taking a number of actions with respect to substantially similar merchandise. These actions are intended to clarify the proper classification analysis with regard to apparel that consists of more than one fabric.
First, we are modifying ten additional rulings on substantially similar merchandise: New York Ruling Letter (“NY”) NY N257834, dated October 15, 2014, NY N257469, dated October 7, 2014, NY N243946, dated July 23, 2013, NY N242436, dated June 7, 2013, NY N235714, dated December 4, 2012, NY N208296, dated March 23, 2012 (style 19446), NY N173438, dated July 14, 2011 (styles 63917 and 65896), NY N138899, dated January 13, 2011, NY N138900, dated January 13, 2011, and NY N043115, dated November 21, 2008 (styles D111496 and D111459).
In each of these rulings, the tariff classification provided is correct. However, we are modifying the rulings by removing discussion of the essential character and providing that the merchandise is classifiable on the basis of GRI 1 rather than GRI 3(b).
In addition, we are modifying HQ 960960, dated April 10, 2001 only insofar as to remove the parenthetical that inaccurately describes the term “overlay” as that “(which is a merely a decorative addition to the garment).”
Finally, we are revoking NY N255267, dated August 7, 2014, and NY N254620, dated July 16, 2014. In each of these two rulings the essential character criterion was incorrectly applied. In NY N255267, the subject garment should have been classified by applying GRI 3(b) with the essential character being imparted by the open work knit fabric overlay rather than the body fabric. In NY N254620, the subject garment should have been classified on the basis of its knit body fabric by applying GRI 1, rather than classifying the garment on the basis of its overlay fabric by applying GRI 3(c).
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on November 6, 2019, in Volume 53, Number 40, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In HQ 950007, the two women’s knit pullover garments with woven fabric overlaid fronts were described as follows:
Style No. 9746 is a woman's V-neck sleeveless knit wool pullover. It has large armhole openings finished with rib knit capping, and a 3 inch wide rib knit waistband. The garment extends below the waist and is intended to be worn over other outer wearing apparel. The knit fabric comprising the garment is constructed with more than nine stitches per two centimeters. The entire front, except for the arm, neck, and waist bands, is overlaid with a decoratively printed woven silk fabric.
Style No. 1157 is essentially the same garment as Style No. 9746, except that it has long sleeves with rib knit cuffs and the waistband is 2-3/4 inches wide.
The knit portions of the garments are stated to comprise over 60 percent of the surface area of each garment and over 85 percent of the weight of each garment.
HQ 950007 also indicated that the garments include “wide solid black waistbands” that “contrast markedly with the brightly colored silk overlays” and “constitute a significant frontal presence.”
ISSUE:
What it the proper classification of the subject two women's knit pullover garments with woven fabric overlaid fronts?
LAW AND ANALYSIS:
Classification decisions under the Harmonized Tariff Schedule of the United States (“HTSUS”) are made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2019 HTSUS provisions under consideration are as follows:
6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted:
* * *
6211 Track suits, ski-suits and swimwear; other garments:
Note 2 to Section XI, HTSUS, provides as follows:
Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile materials.
When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.
For the purposes of the above rule:
Gimped horsehair yarn (heading 5110) and metalized yarn (heading 5605) are to be treated as a single textile material the weight of which is to be taken as the aggregate of the weights of its components; for the classification of woven fabrics, metal thread is to be regarded as a textile material;
The choice of appropriate heading shall be effected by determining first the chapter and then the applicable heading within that chapter, disregarding any materials not classified in that chapter;
When both chapters 54 and 55 are involved with any other chapter, chapters 54 and 55 are to be treated as a single chapter;
Where a chapter or a heading refers to goods of different textile materials, such materials are to be treated as a single textile material.
The provisions of paragraphs (A) and (B) above apply also to the yarns referred to in notes 3, 4, 5 or 6 below.
Subheading Note 2 to Section XI, HTSUS, provides as follows:
Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification o fa product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials.
For the application of this rule:
Where appropriate, only the part which determines the classification
under general interpretative rule 3 shall be taken into account;
In the case of textile products consisting of a ground fabric and a pile
or looped surface no account shall be taken of the ground fabric;
In the case of embroidery of heading 5810 and goods thereof, only the ground fabric shall be taken into account. However, embroidery without visible ground, and goods thereof, shall be classified with reference to the embroidering threads alone.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the
international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
General EN to Chapter 61 states, in pertinent part:
The classification of goods in this Chapter is not affected by the presence of parts or accessories of, for example, woven fabrics, furskin, feathers, leather, plastics or metal. Where, however, the presence of these materials constitutes more than mere trimming the articles are classified in accordance with the relative Chapter Notes (particularly Note 4 to Chapter 43 and Note 2 (b) to Chapter 67, relating to the presence of furskin and feathers, respectively), or failing that, according to the General Interpretative Rules.
General EN to Chapter 62 states, in pertinent part:
The classification of goods in this Chapter is not affected by the presence of parts or accessories of, for example, knitted or crocheted fabrics, furskin, feather, leather, plastics or metal. Where, however, the presence of such materials constitutes more than mere trimming the articles are classified in accordance with the relative Chapter Notes (particularly Note 4 to Chapter 43 and Note 2 (b) to Chapter 67, relating to the presence of furskin and feathers, respectively), or failing that, according to the General Interpretative Rules.
When considering the classification of apparel made up of both woven and knit fabrics, guidance may be found in HQ Memorandum 084118 (April 13, 1989), which states in pertinent part:
For upper or lower body garments, if one component exceeds 60 percent of the visible surface area, that component will determine the classification of the garment unless the other component:
forms the entire front of the garment; or
provides a visual and significant decorative effect (e.g., a substantial amount of lace); or
is over 50 percent by weight of the garment; or
is valued at more than 10 times the primary component.
If no component comprises 60 percent of the visible surface area, or if any of the above four listed conditions are present, classification will be according to GRI 3(b) or 3(c), as appropriate.
In HQ Memorandum 080817 (Aug. 31, 1987), the U.S. Customs Service (“Customs”) discussed General ENs to Chapters 61 and 62 and the effect of trimming. HQ Memorandum 080817 explains that apparel is usually classified according to its outer shell. Customs interpreted the term “trimming” used in the ENs to Chapters 61 and 62 to mean “parts or accessories of a garment that do not materially contribute to its character or usefulness.”
HQ Memorandum 080817 states that in instances wherein a garment contains accessories or parts that are merely trimming, then the garment should be classified according to Subheading Note 2(A) to Section XI, HTSUS, that is on the basis of the one textile material which predominates by weight or, if no material predominates by weight, on the basis of the material that occurs last in numerical order among those that merit equal consideration. No consideration should be given to the trimmings.
By contrast, the memorandum also explains that, in accordance with the ENs to Chapters 61 and 62, when the garment includes “materials that constitute more than mere trimming” then those materials are to be considered when classifying the garment. In such instances, the garment must be classified in accordance with Subheading Note 2(B)(a) to Section XI, HTSUS. Examples of parts and accessories that are merely trimmings includes unimportant linings, shoulder pads, and pockets. Examples of parts and accessories that are “more than mere trimming” includes heavy weight linings that provide substantial warmth.
Accordingly, in classifying an upper body garment of Chapters 61 or 62 with an overlay, we must consider whether the overlay “constitutes more than mere trimming.” In instances where the overlay to an upper body garment of Chapters 61 or 62 is mere trimming (decorative), then we classify the garment in accordance with Subheading Note 2(A) to Section XI, HTSUS, disregarding the overlay. However, in instances where the overlay to an upper body garment of Chapters 61 or 62 is more than mere trimming (integral), then we classify the garment in accordance with Subheading Note 2(B)(a) to Section XI, HTSUS, which means that we consider GRI 3 in determining whether the overlay or the material forming the rest of the upper body of the garment will be considered in applying Subheading Note 2(A) to Section XI, HTSUS. See Subheading Note 2(B)(a) to Section XI, HTSUS; see also HQ Memorandum 080817. The determination of whether an overlay is a trimming or “more than a mere trimming” must be made on a case-by-case basis.
HQ 950007 indicates that “the waistbands constitute a significant frontal presence” and that while covering most of the front, the silk overlays do not form the entire front of the garments. Moreover, the ruling indicates that the silk overlays were simply decorative trimmings and, therefore, should be disregarded in the classification of the merchandise pursuant to the ENs to Chapters 61 and 62, HTSUS. Accordingly, the ruling concludes in the Law and Analysis section that “the garments should be classified pursuant to GRI 1 without any consideration being given to the overlaid woven silk fabric fronts.” Based on the description of the merchandise provided in HQ 950007 and the analysis provided therein, the Holding in HQ 950007 should be modified to indicate that the garments are classified based on the knit fabric pursuant to GRI 1 rather than GRI 3.
The tariff classification indicated in the Holding section of HQ 950007 is correct based on the remaining analysis provided in the ruling. Specifically, Style No. 9746 was properly classified in subheading 6110.10.2060, HTSUSA (Annotated), and Style No. 1157 was properly classified in subheading 6110.10.2080, HTSUSA. The corresponding subheading in the 2019 HTSUS for garments composed of wool is subheading 6110.11.00, HTSUS.
In this ruling, we are modifying eleven additional rulings, specifically: HQ 960960,
NY N257834, NY N257469, NY N243946, NY N242436, NY N235714, NY N208296,
NY N173438, NY N138899, NY N138900, and NY N043115. In each of these rulings, except for HQ 960960, we are modifying the ruling only insofar as to remove the essential character determination and to clarify that the merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b). The tariff classification in each of these rulings is otherwise correct. We are modifying HQ 960960 only insofar as to remove the parenthetical that inaccurately describes the term “overlay” as that “(which is a merely a decorative addition to the garment).” This is an incorrect statement because an overlay may be mere trimming (decorative) or more than mere trimming (integral).
We are also revoking NY N255267, dated August 7, 2014, which concerned the classification of a “woman’s … pullover constructed from 60% cotton and 40% polyester jersey knit fabric and a 100% polyester open work knit fabric overlay on the front panel…. The garment features a scoop front neckline, a high rear neckline, short hemmed sleeves and a hemmed bottom. The pullover extends to below the waist.” In NY N255267, CBP classified the subject merchandise in subheading 6110.20.2079, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other: Other: Other: Women’s or girls’: Other,” on the basis of the jersey knit fabric that formed the body of the garment pursuant to GRI 3(b). The knit overlay in this case is more than mere trimming because by covering the full front panel it materially contributes to the character of the garment; therefore, we must consider the overlay material when classifying the garment and we must classify the merchandise in accordance with Subheading Note 2(B)(a) to Section XI, HTSUS. See HQ Memorandum 080817. Subheading Note 2(B)(a) to Section XI, HTSUS, states that “[w]here appropriate, only the part which determines the classification under general interpretative rule 3 shall be taken into account.” Applying GRI 3(b) and the guidance provided by HQ Memorandum 084118 to the subject garment, we find that the essential character of this garment is imparted by the open work knit fabric overlay that covers the entire front of the garment. See also NY N271104 (Dec. 22, 2015), NY 273008 (March 9, 2016). Accordingly, the subject merchandise is properly classified in subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.”
Finally, we are revoking NY N254620, dated July 16, 2014, which concerned the classification of three styles of boy’s cardigans (Styles B1051, D284690, and D284691) each constructed of a knit body fabric. Style B1051 has a woven fabric overlay that covers the “knit front panels, excluding the one and one-half inch wide front placket and two inch wide waistband.” Style D284690 has a woven fabric overlay that covers the “two front panels,” the two “and a one and five-eighths inch portion of the waistband on either side of the zipper,” and the “[t]wo front pockets at the waist, each with a one snap flap closure.” Style D284691 has a woven fabric overlay that covers the “two front panels, including the pockets but excluding the waistband, and the back yoke.” Style D284691 was misclassified on the basis of GRI 3(b) and it was determined that the overlay imparted the essential character of the garment. CBP classified style D284691 in subheading 6211.33.0061, HTSUSA, which in the 2014 Revision 1 Edition of the HTSUS, provided for “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers: Other.”
In NY N254620, styles B1051 and D284690 were misclassified pursuant to GRI 3(c) because it was determined that neither the woven overlay nor the knit body fabric imparted the essential character of the garment. For both Styles B1051 and D284690, CBP applied a GRI 3(c) analysis and classified the garments in subheading 6211.32.0081, HTSUSA, which in the 2014 Revision 1 Edition of the HTSUS, provided for “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of cotton: Other.” Upon reviewing the samples submitted for this ruling, we note that the overlay on each of the subject three style cardigans is mere trimming because the overlay on each garment is only decorative and does not contribute to the character or usefulness of the cardigans. See Rubies Costume Co. v. United States, 279 F. Supp. 3d 1145, 1169 (Ct. Int’l Trade 2017) (stating that EN 61.10 “provides examples of articles that share the essential characteristics of the articles named in the heading; that is, articles that cover the upper body, provide warmth, and may be worn over a light garment”). The knit fabric imparts the warmth provided by these cardigans. Therefore, the overlays should be disregarded for classification purposes. See General EN to Chapter 61. Consequently, the three styles of boy’s cardigans (Styles B1051, D284690, and D284691) are properly classified pursuant to GRI 1 as knit garments in subheading 6110.20.20, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other.”
HOLDING:
Under the authority of GRIs 1, 3(b), and 6 Style Nos. 1157 and 9746 are classified under heading 6110, HTSUS, specifically, in subheading 6110.11.00, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of wool or fine animal hair: Of wool.” The 2019 column one, general rate of duty for 6110.11.00, HTSUS, is 16 percent ad valorem.
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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 950007, dated October 4, 1991, is MODIFIED as described herein.
HQ 960960, dated April 10, 2001, is MODIFIED by removing the parenthetical that describes the term “overlay” by stating that an overlay is that “(which is a merely a decorative addition to the garment).”
NY N257834, dated October 15, 2014, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N257469, dated October 7, 2014, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N243946, dated July 23, 2013, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N242436, dated June 7, 2013, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N235714, dated December 4, 2012, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N208296, dated March 23, 2012, is MODIFIED by removing the determination for style 19446 that the essential character of the dress is the woven fabric, however, the merchandise was properly classified based on the woven fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N173438, dated July 14, 2011, is MODIFIED by removing the essential character determination for styles 63917 and 65896, however, both styles 63917 and 65896 were properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N138899, dated January 13, 2011, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N138900, dated January 13, 2011, is MODIFIED by removing the essential character determination, however, the merchandise was properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N043115, dated November 21, 2008, is MODIFIED by removing the essential character determination for styles D111496 and D111459, however, both styles D111496 and D111459 were properly classified based on the body fabric. The merchandise should have been classified on the basis of GRI 1 rather than GRI 3(b).
NY N255267, dated August 7, 2014, is REVOKED.
NY N254620, dated July 16, 2014, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division