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HQ 960258




September 12, 1997

CLA-2 RR:TC:TE 960258 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.90.9024

Ms. Fiona Chau
Second Secretary
Hong Kong Economic and Trade Affairs
Hong Kong and Economic Trade Office
1520 18th Street, N.W.
Washington, D.C. 20036

RE: Review of Pre-entry Classification Ruling; Stitch Count; Knitted Sweater; ;
Heading 6110; Statistical Note 3, Chapter 61

Dear Ms. Chau:

This is in reply to your letter dated February 19, 1997, on behalf of a Hong Kong exporter, seeking review of Customs Pre-Classification Ruling (PC) A88656, dated November 25, 1996, concerning the tariff classification of a garment.

Facts:

The garment, style K176002GB, is a men's pullover constructed from 65 percent linen, 20 percent nylon and 15 percent rayon, rib knit fabric. It has a V-neck, long sleeves with finished cuffs and a self-finished bottom. Customs National Import Specialist describes the garment as follows:

[It] is constructed from rib knit fabric which alternates arrangements of knit and purl stitches throughout the body of the garment. The rib knit pattern alternately juxtaposes a varied rib and a 1 x 2 rib. On the submitted sample, the shoulder area, the upper chest and the upper waist area are constructed from the varied rib arrangement which measures 11 stitches per 2 centimeters counted horizontally. The upper chest area, the mid-chest area, and the bottom are a 1 x 2 rib arrangement measuring 9 stitches per 2 centimeters counted horizontally.

In PC A88656, Customs classified the garment under subheading 6110.90.9088 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as a pullover. Your office believes that the garment should be classified as a sweater under subheading 6110.90.9022, HTSUSA, or under subheading 6110.90.9024, HTSUSA.

ISSUE:

Is the garment with two stitch count patterns classifiable as a sweater (with 9 or fewer stitches per 2 centimeters) under subheading 6110.90.9022, HTSUSA, or subheading 6110.90.9024, HTSUSA, or as a pullover under subheading 6110.90.9088, HTSUSA (with 11 stitches per 2 centimeters)?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 GRI's may be applied, taken in order.

Heading 6110, HTSUSA, provides for "[s]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted." Sweaters are provided for under heading 6110, HTSUSA, at the statistical level. Statistical Note 3, Chapter 61, Section IX, HTSUSA, provides the criteria for the classification of sweaters. It reads as follows:

For the purposes of this chapter, statistical provisions for sweaters include garments, whether or not known as pullovers, vests or cardigans, which are constructed essentially with 9 or fewer stitches per 2 centimeters measured in the direction the stitches were formed, and garments, known as sweaters, where, due to their construction, the stitches on the outer surface cannot be counted in the direction the stitches were formed.

The garment at issue is constructed of knit fabric with two different stitch count patterns. The first pattern is a rib knit with 11 stitches per 2 centimeters measured in the horizontal direction and the second pattern is a rib knit with 9 stitches per 2 centimeters measured in the horizontal direction. You state that 60 percent of the garment's surface is constructed of the rib knit with 9 stitches per 2 centimeters. - 3 -

In Headquarters Ruling Letter (HQ) 954712, dated November 8, 1993, also addressed to your office, Customs considered the same issue presented in this case concerning similar merchandise. The garment in 954712 contained knit fabric with two repeating patterns - rib knit with 14 stitches per 2 centimeters measured in the horizontal direction and double knit with 9 stitches measured in the horizontal direction. Customs utilized the principles of GRI 3 to classify that garment. The pertinent part of the ruling states that:

It must be recognized that the application of the GRIs to the statistical annotations is not required under the HTS. GRI 6, which incorporates GRIs 1 through 5 in classifying goods at the subheading level, is limited to the determination of the legal classification of the merchandise. By contrast, the determination of the appropriate statistical annotation is a matter committed to the authority of the Committee established by section 484(e) [now section 484(f)], Tariff Act of 1930. Accordingly, there is no legal requirement that GRI 6 apply to the determination of the appropriate statistical annotation. See, Headquarters Ruling Letter 088555, dated March 21, 1991.

It is our opinion, however, that GRI 6 can apply at the 10 digit level. This will occur only where there is an existing question as to which statistical annotation applies and where no other rule will resolve the matter. Therefore, in the instant case, as there is a question regarding which statistical annotation applies and there is no other rule that will resolve the matter, we will utilize GRI 3, pursuant to GRI 6, in determining the classification of the subject garment at the statistical level.

GRI 3 states, in pertinent part, the following:

When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to GRI 3(b) provide an interpretation of the term "essential character." EN VIII to GRI 3(b), page 4, states that:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In our opinion, the fabric with 9 stitches per 2 centimeters, like the rib knit fabric in HQ 954712, constitutes the essential character of the garment as it comprises the greater surface area (60 percent) of the garment's fabric. Moreover, we examined the sample garment and, in our opinion, the portion with less than 9 stitches per 2 centimeters has a visual impact greater than the other fabric. Therefore, the garment will be classified as a sweater under subheading 6110.90.9024, HTSUSA. We note that a Customs National Import Specialist spoke with the importer and confirmed that the garment will be completely manufactured in Hong Kong. Thus, subheading 6110.90.9022 covering sweaters assembled in Hong Kong from knit-to-shape component parts knitted elsewhere, which you cite as a possible classification, is not applicable.

HOLDING:

Garment, style K176002GB, is classifiable as a sweater under subheading 6110.90.9024, HTSUSA, which provides for "Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Other: Sweaters for men or boys: Other: Other." It is dutiable at the general column rate of duty at 6 percent ad valorem, and the textile category is 845.

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 the importer 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 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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