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HQ 952842


January 7, 1993

CLA-2 CO:R:C:T 952842 SK

CATEGORY: CLASSIFICATION

Area Director
U.S. Customs Service
New York Seaport
6 World Trade Center
New York, N.Y. 10048

RE: Affirmation of NYRL's 869034 (12/23/91) and 871108 (2/25/92); boiled wool jackets; subheading 6104.31.0000, HTSUSA; not sweaters; C.I.E. 13/88 11/23/88); Pollak Import Export Corp. v. U.S., Slip. Op. 92-12 (1992).

Dear Madam:

On December 23, 1991, and February 25, 1992, Customs issued New York Ruling Letters (NYRL's) 869034 and 871108 in which it was determined that several styles of women's boiled wool garments were classified as jackets under the HTSUSA. These rulings have been the subject of discussion within the trade community as well as Customs and we therefore feel it is important to clarify our position relative to the classification of this type of garment.

The articles under review are made from 100 percent knitted boiled wool. The fabric is made by boiling wool in water under very high temperatures prior to assembly as a garment. The resulting fabric is relatively waterproof and is only slightly elastic. The outer surface of these garments have more than nine stitches per two centimeters measured in the horizontal direction. Each garment is long-sleeved and has a full frontal buttoned opening.

NYRL 869034 classified a boiled wool garment as a women's suit-type jacket, of wool, under subheading 6104.31.0000, HTSUSA. That garment had a round neckline, two front pockets at the waist and a six button front closure. The sleeve ends, neckline, front placket, bottom of the garment and top of the pockets were finished with knit capping covered with decorative yarn. The garment was bulky and loose fitting and extended to hip-length.

NYRL 871108 similarly classified another style of boiled wool garment as a women's suit-type jacket, of wool, under subheading 6104.31.0000, HTSUSA. The garment featured a rib knit crew neckline, placket, bottom and sleeve ends. Four ornate
metal buttons closed the front placket. Embroidery adorned the front, back and bottom of the arms and metal beads were sewn to the garment. The garment was "boxy" in shape and cropped at the waist.

At issue is whether the subject garments were properly classified under heading 6104, HTSUSA, as women's or girls' suit- type jackets or whether they are more aptly provided for in heading 6110, HTSUSA, as sweaters?

It is this office's opinion that although the articles under consideration may resemble both sweaters and jackets in appearance, they are designed as suit-type jackets. The garments are constructed from 100 percent boiled wool. This fabric has traditionally been used in the manufacture of "Tyrolean" jackets from Austria. The use of boiled wool in jackets continues because of the fabric's suitable characteristics for this purpose: it has a neat tailored appearance, it is warm, it has some degree of natural water repellency, and it is a strong, stable knit fabric. See George E. Linton's The Modern Textile and Apparel Dictionary, (4th revised ed., 1973), which states that this fabric "is an ideal cloth for use in winter wear garments... ."

It has been asserted that these garments are not tailored enough to meet the definition of suit-type jacket as set forth in the Textile Category Guidelines, C.I.E. 13/88, November 23, 1988. We note, however, that the term "tailored" is frequently misconstrued to encompass only those garments which are constructed so as to fit the contours of the body. While this is an accurate definition, it is not all-inclusive. The Reader's Digest Complete Guide to Sewing, May 1985, p.360, states, "(t)ailoring is just a refinement of standard sewing procedures, aimed at building permanent shape into the garment." Tailoring refers not only to the styling of a garment, but also to its workmanship. Styling refers to the cut and fit of a garment, whereas workmanship connotes the degree to which the garment has been finished (i.e., the spacing and size of stitch used, the finishing of seams so that no raw edges show, the pressing of seams to ensure a streamlined silhouette). Reader's Digest, at p.567. It is this office's position that the garments the subject of NYRL's 869034 and 871108 are "tailored" within the broader meaning of the term and therefore not precluded from classification as suit-type jackets on this basis. We add that the use of boiled wool contributes to the tailored appearance of these garments in that it is a relatively rigid material. It is this limited elasticity which also detracts from these garments' viability as sweaters which are invariably made from stretchable knits.

We are in receipt of evidence as to how the trade treats these types of garments in the United States. A recent clothing catalogue features a photograph of a women wearing a boiled wool garment with a full front six button closure, similar to those at issue, and the copy twice refers to the garment as a "jacket." This is persuasive evidence that the industry treats garments similar to those at issue as jackets and not sweaters. This is significant because when Customs is asked to classify a garment, we will consider not only how an importer treats the garment, but also the manner in which a garment is treated in the trade and commerce of the United States.

The Explanatory Notes (EN) to heading 6103, HTSUSA, apply mutatis mutandis to the articles of heading 6104, HTSUSA. The latter heading provides for women's or girls' jackets and blazers and the EN state that these articles are designed to cover the upper part of the body, with a full front opening without a closure or with a closure other than a zipper. They do not extend below the mid-thigh area and are not for wear over another coat, jacket or blazer. Additionally, the outer shell consists of three or more panels (of which two are at the front) sewn together lengthwise. The dictionary definitions for the competing designations of this merchandise are set forth in Essential Terms of Fashion, by Charlotte Mankey Calasibetta, (1986), which reads:
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).

The boiled wool garments at issue meet the definition for jackets in that they are worn over other apparel and provide considerable warmth. They also qualify as jackets capable of being worn on more formal occasions, and allow the wearer to display a fashionable, high-quality, high-fashion jacket with dressier skirts and pants. To assert that the garments are not intended to be worn as primary protection from the elements outdoors is to underestimate and severely limit the function of the garments.

This office has previously issued rulings which cite the distinctions between jackets and sweaters and classified certain
garments as the latter under heading 6110, HTSUSA. The garment in HRL 084180, dated August 3, 1989, was deemed to lack the tailoring typical of a suit-type jacket. We note that the garment classified in that ruling was quite different from those currently under review. The garment in HRL 084180 was a fine knit cardigan-like garment with long sleeves, two inset pockets, a full front opening without means of closure and a deep V-neck. Similarly, in HRL 089578, dated October 8, 1991, this office classified a cardigan-style garment made from lightweight fabric with a deep V-neck and full front opening with a double-breasted four button closure, long sleeves, rib knit cuffs, a pronounced- 4 -
rib waistband and a partial rib knit neckline. Both of these garments are similar to athletic sweaters often referred to as "letter" sweaters. See Essential Terms of Fashion, at p.211. Not only are the garments currently at issue distinguishable in overall style from those described above, but the type of fabric used, boiled wool, is not a traditional sweater fabric but rather one normally associated with jackets. This fabric lacks the horizontal elasticity found in most sweaters. Although the garments in NYRL's 869034 and 871108 have rib knit cuffs, waistbands and necklines, these features are found on both sweaters and jackets. Rib knit cuffs and the like will not by itself render these garments sweaters when all other features, taken in their totality, indicate the garments are suit-type jackets. The garments the subject of HRL 084180 and HRL 089578 are so different in construction and appearance from the subject merchandise, that no precedential analogy may be drawn.

Lastly, we recognize that the court's decision in Pollak Import Export Corp. v. U.S., Slip. Op. 92-12 (1992), held that boiled wool jackets are not outerwear coats. That case, however, was decided under the Tariff Schedules of the United States (TSUS) and at that time, prior to 1989, the TSUS only allowed a limited classification choice between "coats" and an "other" designation for the statutory breakout at the five digit level. The Pollak court determined that the tariff provision for coats was a use provision and that the chief use of imported merchandise was the principal use. The court felt that the common definition of "coat" did not encompass the boiled wool garments and the garment was classified under the "other" breakout. In the interim, the HTSUSA has replaced the TSUSA and several specific headings and statutory breakouts have been added, including a provision for suit-type jackets and blazers. This new provision renders the reasoning in Pollak obsolete with regard to why the garment in that case had to be either a "coat" or an "other" garment, as boiled wool garments are now aptly provided for under a breakout for suit-type jackets.

In consideration of the foregoing, it is this office's position that the subject merchandise of NYRL's 869034 and 871108 were properly classified as suit-type jackets under heading 6104, HTSUSA.

Sincerely,


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