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HQ 084247


JULY 28, 1989

CLA-2 CO:R:C:G 084247 PR; NY 838583

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.10.2080; 6110.30.1560; 6114.10.0070; 6114.30.3070

Donald J. Unger, Esquire
Barnes, Richardson & Colburn
200 East Randolph Drive
Chicago, Ill. 60601

RE: Classification of a Woman's Pullover and "Cape"

Dear Mr. Unger:

This ruling is in response to your letters of March 21 and 31, 1989, on behalf of Spiegel, Inc., concerning the tariff status of a woman's knit garment and accompanying "cape".

FACTS:

The submitted samples are a modified turtle neck long sleeve hip length pullover and a short length pullover which fits over the shoulders but which has no sleeves or armholes. For ease of reference only, the long sleeve pullover will be referred to in this ruling as the pullover and the sleeveless pullover will be referred to as the cape.

The cape, which is shaped to conform to and cover the shoulders, has a straight neckline and a straight bottom that is approximately 10 inches below the neckline. It is made from a 6 x 6 allover knit fabric, which presents a distinctly ribbed effect. The pullover is constructed with a 1 x 1 allover knit fabric that presents a relatively plain knit appearance. It is stated that both articles will, when imported, be 50 percent wool and 50 percent acrylic by weight. The cape is not normally offered for sale separately.

ISSUE:

The primary issues presented are: (1) Whether the cape is a garment or an accessory? (2) In either event, are the two articles classifiable as composite goods or as sets?

LAW AND ANALYSIS:

It is contended that the cape is an accessory and not a garment. Therefore, the cape and pullover should be classified as a composite good, classifiable as a single garment under the provision for other sweaters, pullovers, and similar garments, in Subheading 6110.30.1560, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The rationale for this classification is that the two articles are mutually complementary, practically inseparable, form a whole, and would not normally be sold separately.

The first question that must be resolved is whether the cape is a garment or an accessory. If the former, following General Rule of Interpretation (GRI) 1, HTSUSA, and Note 13, Section XI, HTSUSA, the combination must be broken up for classification purposes and the components classifiable separately. If the latter, and if meeting the requirements under the HTSUSA for either a set or a composite good made up of different components, then, in accordance with GRI 3, HTSUSA, they may be classifiable as a single unit.

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation in the order in which they appear. GRI 1 provides generally that for legal purposes, classification shall be determined according to the terms of the headings and any relevant section or chapter notes. In this instance, we believe that we need go no further than GRI 1 in order to classify the instant merchandise.

Note 13, Section XI, provides that, in the absence of a context to the contrary, "textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale." GRI 6 provides that, for legal purposes, the classification of goods at the subheading levels shall also be governed by the General Rules of Interpretation. Accordingly, if it is determined that the cape is a "garment" and classifiable under a different heading than the pullover, the two garments are required to be classified separately.

In our view, the cape is a garment within the purview of Note 13. We see no real distinction between the cape here at issue and bolero-type tops imported as parts of "two-piece dresses", which, under the predecessor to the HTSUSA, the Tariff Schedules of the United States Annotated (TSUSA), were considered to be separately classifiable garments. While the bolero-type tops may have had armholes, they were usually of the identical fabric and color, formed a whole outfit, and would not normally be either worn or sold separately.

In the instant case, the cape is of a different fabric than its accompanying garment and it does not resemble a real cape, to which it has been likened, except in use. It has a hole in the center through which the head of the wearer is inserted and the article is shaped to fit snugly around the wearer's shoulders. In our view, the lack of armholes does not preclude the cape from being a garment.

Since the two articles are separate garments, it must be determined whether the garments are classifiable under different headings. In this case, while both garments are knit, the pullover is classifiable under Heading 6110, HTSUSA, as a sweater, pullover, or similar article, while the cape, because of limited body coverage and a lack of armholes, is classifiable under Heading 6114, HTSUSA, as an other knitted garment. Since the two garments are classifiable in different headings, Note 13 is applicable and those garments cannot be classified either as a set put up for retail sale or as composite goods.

Even if Note 13 did not apply in this instance, the garments still could not be classifiable as composite goods. The Harmonized Commodity Description and Coding System, Explanatory Notes, which is the official interpretation of the HTSUSA at the (the 4 and 6 digit headings) international level, provide,at page 4, that combinations of components, if separable, may be considered composite goods provided they (1) are adapted to each other; (2) are mutually complementary; and (3) form a whole that would not normally be offered for sale separately.

In this instance, the two garments fail each of the above tests. They are not particularly adapted to each other. Not only can they be worn separately, but, in our view, the long sleeve pullover would have significant wear without the cape. While the garments may be the same color, we do not believe that they are mutually complementary because their fabric is different and the use of one is not dependent on the use of the other. It is true that the cape cannot be worn without another upper body garment, but it is capable of being worn with other garments. Further, we are unaware of what "whole" the combination of garments form when worn together, other than a coordinated outfit. The mere combination of coordinated components which are capable of separate use should not automatically result in the classification of those components as composite goods.

It is indicated that the merchandise will be 50 percent wool and 50 percent acrylic by weight. Pursuant to Section XI Note 2(A), HTSUSA, and Section XI Subheading Note 2, HTSUSA, the garments, will each be classified according to which component predominates by weight. If deemed appropriate, the classifying officer may submit the garments to a Customs laboratory to determine the fiber of chief weight.

HOLDING:

The pullover is classifiable under the heading for sweaters, pullovers, sweat shirts, and similar articles: If in chief weight of wool, in Subheading 6110.10.2080, HTSUSA, or if in chief weight man-made fibers, in Subheading 6110.30.1560, HTSUSA. In either event, the garment is dutiable, as a product of Taiwan, at the rate of 17 percent ad valorem, and falls within textile restraint category 438.

The cape does not fall within that class of garments which are known commercially either as "capes" or as "tops". Accordingly, it is classifiable under the heading for other knit garments: If in chief weight of wool, in Subheading 6114.10.0070, HTSUSA, with duty, as a product of Taiwan, at the rate of 17 percent ad valorem, and in textile restraint category 459; or, if in chief weight man-made fibers, in Subheading 6114.30.3070, HTSUSA, with duty at the rate of 30 percent ad valorem, and in textile restraint category 659.

Due to the changeable 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 importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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