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HQ 088690


June 17, 1991

CLA-2 CO:R:C:T 088690 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6102.30.2010

Diane L. Weinberg, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, New York 10022-1106

RE: Reconsideration of HRL 086916 of February 6, 1991; Classification of certain knit garments with full-front zippered openings

Dear Ms. Weinberg:

This ruling is in response to your request of February 11, 1991, and follow-up of February 15, 1991, following your receipt of HRL 086919 issued to you on behalf of your client, Sara Lee Knit Products. We will address the particular concerns you have raised regarding HRL 086919 in your February 11, 1991, letter. This ruling is merely a clarification of HRL 086919; the holding of that ruling stands.

FACTS:

In HRL 086919 of February 6, 1991, Customs classified a knit upper-body garment with a full-front zippered opening, long sleeves, rib knit cuffs, a rib knit waistband, a hood with a drawstring closure, and slant pockets at the waist, as similar to a windbreaker. The garment was classified in subheading 6102.30.2010, HTSUSA. You have taken issue not only with the classification determination, but with the rationale on which it is based.

Specifically, you raised seven points which are summarized as follows:

1. That the definition of the term "sweatshirt" as used in 6110 includes all forms of the article regardless of its type of closure; that based on definitions, a sweatshirt includes zipped garments.

2. Since the term "sweatshirt" was not defined at the five- digit duty level under the TSUS, Customs cannot rely on the meaning of the term under the TSUS in order to classify the garment under the HTSUS.

3. That notes from a 1981 meeting at the United States International Trade Commission have no value in interpreting the HTSUS.

4. That the Textile Category Guidelines are not relevant in determining the tariff classification at the four, six or eight digit level.

5. That your arguments on the practice or position issue were not addressed and that any practice that may have existed under the TSUS was not carried over to the HTSUS.

6. That Customs agrees the pullover and zipped garments are worn for the same purpose, added warmth, but states that they are not worn in the same manner or for the same reasons.

7. That the features on the zipped sweatshirt were stated to be similar to those on sweatshirts, but then found to be characteristic of those found on lightweight jackets.

ISSUE:

Should HRL 086919 be modified?

LAW AND ANALYSIS:

We will address your points in the order in which they were raised.

The crux of HRL 086919 was that Customs determined that the term "sweatshirt" in 6110 did not encompass upper body garments of "sweatshirt" fabric with full-front zippered openings. The decision was based on the textual adaptation of heading 6110 with the insertion of the term sweatshirt; the meaning of that term under that United States tariff schedules at the time; working notes from the International Trade Commission regarding heading 6110; and the administrative practice in existence at the time the language of the heading was "Americanized" and the classification of the garments at issue by Customs since the adoption of the Harmonized Tariff Schedule of the United States.

We agree some clarification on this point may be appropriate.

POINT 1

One can find differing definitions for the term sweatshirt depending on one's source. For instance, in your submission you cited Fairchild's Dictionary of Fashion by Charlotte Calasibetta as defining the term sweatshirt, in pertinent part, as:
long-sleeved fleece-backed cotton-knit pullover or zipped- front shirt with ribbed crew or turtleneck, cuffs, and waistband, sometimes with attached hood; * * *

However, Customs can cite other sources as limiting the definition of sweatshirt to pullover garments. For example, in The Fashion Dictionary by Mary Brooks Pickens a sweatshirt is defined as:

Loose, pullover sports sweater; Collarless, high-necked, pull-over sweater; often with fleecy inside and fine-ribbed outside. Used by athletes. (page 374).

Webster's II New Riverside University Dictionary defines sweatshirt as:

A usu. long-sleeved cotton jersey pullover. (page 1169)

Clearly, lexicographic sources differ on this matter.

Though not addressed in your February 11, 1991, letter, we would also like to point out that commercially, there appears to be differing views on the scope of the term sweatshirt. While advertisements may be found which include front-zippered garments, other advertisements may be found which clearly distinguish sweatshirts and sweatjackets.

Since lexicographic sources differ and there is a lack of consistent commercial designation evident in regard to the scope of the term "sweatshirt", the term may be considered ambiguous. Therefore, it is proper to ascertain the meaning of the term under the previously enacted tariff schedule in order to ascertain legislative intent of its scope in the current tariff schedule. To assume the term includes all forms of the article regardless of the type of closure would ignore the ambiguity of the term. See, C.J. Tower & Sons v. United States, 44 CCPA 41, 44, C.A.D. 634 (1957) wherein the Court rejected as controlling the appellants citations of dictionary definitions of corn "to the effect that all corn is `corn'".

POINT 2

The term "sweatshirt" appeared at the statistical level and at the five-digit level duty level under the TSUS. It appeared in items:

381.40--other men's or boys' wearing apparel, not ornamented: of cotton: knit: other: shirts and sweaters: T- shirts, except all white; sweatshirts;

384.80--other women's, girls', or infants' wearing apparel, not ornamented: of man-made fibers: knit: blouses, body suits and body shirts, shirts (other than sweatshirts), and sweaters; and,

384.81--sweatshirts.

Therefore, the meaning of the term under the TSUS was applied at the five-digit duty level as well as at the statistical level.

POINT 3

The notes from the 1981 meeting at the United States International Trade Commission have value in that they provide informational background. The notes were not the basis for the classification decision in HRL 086919, but did bolster Customs belief that the intended scope of the term "sweatshirt" as it appears in the HTSUS was the same as its scope under the previous tariff.

POINT 4

In regard to the relevancy of the Textile Category Guidelines as stated in HRL 086919, you are correct in their application at the statistical level. However, they have value beyond the statistical level in providing guidance in regard to characteristics of garments when the legal notes and the explanatory notes to the HTSUSA fail to offer any aid in determining the classification of an article. As stated in HRL 086919, the Guidelines provide guidance, it was never stated that they are binding beyond the statistical level or that they have any legal significance.

POINT 5

Your arguments on the practice and position issue were not addressed because it was felt the arguments were directed toward convincing Customs to issue a ruling rather than publish a notice
in the Federal Register seeking comments regarding the classification of the garments at issue. Customs decided to issue a ruling. However, we will address your arguments here.

In support of your position that the issue of classification of sweatshirts under the TSUS is not pertinent to their classification under the HTSUS you cite the decision of the Court of International Trade in Allen Sugar Company v. Nicholas F. Brady, Slip. Op. 89-16 (February 9, 1989). We believe a careful reading of the case reveals that it does not support the position for which it is cited. In Allen Sugar Company the court granted the defendant's motion to dismiss for lack of jurisdiction because the plaintiff failed to exhaust available administrative remedies. The quotation cited from the case in your October 8, 1990, submission points out that the HTSUS and the TSUS are different laws, but you failed to cite the complete paragraph. The court finished its thought with the following:

It is, therefore, irrelevant whether Customs appropriately executed its duties regarding the section 516 petition, since the question of classification under the TSUS is not germane to the question of classification under the HTSUS in this circumstance. [emphasis added].

In determining the scope of the term under the HTSUS, Customs examined the scope of the term under the TSUS. The reasons for doing so are stated above in point 1. In examining the scope of the term under the previous tariff schedule, the long-standing administrative practice referred to in HRL 086919 bears on the construction of the statutory provision. Commonwealth Oil Refining Company Inc. v. United States, 60 CCPA 162, 480 F 2d. 1352, C.A.D. 1105 (1973).

POINT 6

On this point, Customs maintains its position that the garments with full-front zippered openings are worn in the manner of lightweight jackets and are therefore distinguishable from the pullover garments.

POINT 7

Regarding this last point, it is not unusual for a garment to have some features which are associated with one garment and some which are characteristic of another garment. Were this not the case, there would be little disagreement in regard to the classification of garments.

HOLDING:

It is hoped the above discussion clarifies the rationale for Customs classification determination in HRL 086919 of February 6, 1991. No modification of HRL 086919 is deemed necessary.

Sincerely,

John Durant, Director
Commercial Rulings Division

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