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HQ 965874




February 6, 2003

CLA-2-61:RR:CR:TE ttd

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0030; 6108.92.0030

Ms. Amanda Wilson
Dillard’s, Inc.
Customs Compliance Dept.
1600 Cantrell Road
Little Rock, Arkansas 72201

RE: Revocation of New York Ruling Letter (NY) I84948, dated August 26, 2002; Modification of NY H87322, dated February 15, 2002; Classification of Women’s Knit Garments

Dear Ms. Wilson:

This is in response to your letter of August 30, 2002, requesting reconsideration of New York Ruling Letter (NY) I84948, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain women’s knit garments. After review of NY I84948, Customs has determined that the classification of the merchandise considered under heading 6110, HTSUSA, was incorrect. In addition, after reviewing NY H87322, also issued to your company, we have concluded that the classification of similar merchandise in heading 6104, HTSUSA, was partially incorrect. For the reasons that follow, this ruling revokes NY I84948 and modifies, in part, NY H87322. Samples were submitted.

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. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NY I84948 and proposed modification of NY H87322 was published on January 2, 2003, in the Customs Bulletin, Volume 37, Number 1. As explained in the notice, the period within which to submit comments on this proposal was until February 3, 2003. No comments were received in response to this notice.

FACTS:

In I84948, dated August 26, 2002, five styles of women’s knit garments were classified under heading 6110, HTSUSA, which provides for, inter alia, sweaters, pullovers . . . and similar articles, knitted. The items were described as follows:

The outer surface of each of the five garments measures more than 9 stitches per 2 centimeters in the horizontal direction. Each of the five garments extends from the shoulder to the mid-thigh area. Style S31DW270 is a 100% cotton, sleeveless pullover that features a scoop neckline, 2 side slits, and a hemmed bottom.

Style S31DW271 is a 55% cotton, 45% polyester cardigan that features a hood, short hemmed sleeves, a full front opening with a zipper closure, 2 side seam pockets in the waist area, 2 side slits, and a hemmed bottom.

Style S31DW272 is a pullover that is constructed from 100% polyester, openwork net fabric. The garment features a round neckline with a V-front, long hemmed sleeves, 2 side seam pockets in the waist area, 2 side slits, and a hemmed bottom.

Style S31DW279 is a cardigan that is constructed from 100% polyester, openwork net fabric. The garment features a hood, long hemmed sleeves, a full front opening with a zipper closure, front pouch pockets in the waist area, 2 side slits, and a hemmed bottom.

Style S31DW384 is a pullover that is constructed from 60% cotton, 40% polyester openwork, net fabric. The garment features a V-neckline, short hemmed sleeves, and a hemmed bottom.

In NY H87322, dated February 15, 2002, four styles of women’s knit garments (S21DW311, S21DW317 S21DW318 and S21DW316) were classified in heading 6104, HTSUSA, which provides for, inter alia, knitted women’s dresses. One style (S21DW310) was classified in heading 6108, HTSUSA, which provides for women’s slips . . . nightdresses . . . bathrobes . . . and similar articles, knitted. The articles were described as follows:

Style S21DW310 is a 55% cotton, 45% polyester, jacquard knit robe that extends from the shoulders to the mid-thigh area. The robe features a hood, short hemmed sleeves, a full front opening with a zipper closure, 2 front patch pockets below the waist, and a hemmed bottom.

Style number S21DW311 is a 55% cotton, 45% polyester, jacquard knit sleeveless dress that extends from the shoulders to the mid-thigh area. The dress features a round neckline, a full front opening with a zipper closure, 2 sideseam pockets below the waist, and a hemmed bottom.

Style number S21DW316 is a 100% polyester, openwork, knit sleeveless tank-style dress that extends to the mid-thigh area. The dress features shoulder straps, a scoop neck and a scoop back, and a hemmed bottom.

Style number S21DW317 is a 60% cotton, 40% polyester, openwork knit dress that extends to the mid-thigh area. The dress features a round neckline, short hemmed sleeves, a full front opening with a zipper closure, 2 front patch pockets below the waist, 2 side slits, and a hemmed bottom.

Style number S21DW318 is a 60% cotton, 40% polyester, openwork knit dress that extends to the mid-thigh area. The dress features a V-neckline and short sleeves.

ISSUE:

What is the proper classification of the subject merchandise?

LAW & ANALYSIS

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (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 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

Following GRI 1, there are three headings under consideration: heading 6104, HTSUSA, which provides for, inter alia, women’s knitted dresses; heading 6110, HTSUSA, which provides for, inter alia, women’s knitted sweaters, pullovers and similar articles; and heading 6108, HTSUSA, which provides for, inter alia, women’s knitted bathrobes, dressing gowns, and similar articles.

Heading 6104, HTSUSA, provides for, among other things, knit dresses. In Headquarters Ruling Letter (HQ) 958741, dated March 28, 1996, Customs found that the garment considered was more casual than what is generally considered a dress. We noted that the cut and styling of the submitted garment was significantly different than most garments commonly recognized in the trade as dresses. Weighing the characteristics of the garment in HQ 958741, we concluded that it was “too relaxed in both cut and style, lacking in structure and coverage, to be worn alone as a dress.”

In this case, in NY H87322, Customs incorrectly classified four of the subject styles, identified as S21DW311, S21DW316, S21DW317, and S21DW318, under heading 6104, HTSUSA, as women’s dresses. After further review of each of the submitted samples, we now find that three of those styles (S21DW317, S21DW318, and S21DW316), like the garment considered in HQ 958741, lack the appropriate structure and coverage to be worn alone as a dress. In particular, the three styles, identified as S21DW316, S21DW317 and S21DW318, each features a see-through open-work knit construction which fails to conceal undergarments like a dress. Moreover, we have determined that style S21DW311, while it could be worn as a dress, such a use would be fugitive to its intended use as a beach cover-up. Like the garment considered in HQ 958741, each of the subject articles is “too relaxed in both cut and style, lacking in structure and coverage, to be worn alone as a dress.” Accordingly, these four articles are not classifiable in heading 6104, HTSUSA, as women’s dresses.

Heading 6110, HTSUSA, covers “[s]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” A recent informed compliance publication on apparel terminology describes sweaters as:
knit garments that cover the body from the neck or shoulders to the waist or below (as far as the mid-thigh or slightly below the mid-thigh). Sweaters may have any type of pocket treatment or any type of collar treatment, including a hood, or no collar, or any type of neckline. They may be pullover style or have a full or partial front or back opening. They may be sleeveless or have sleeves of any length. Those sweaters provided for at the statistical level (9th and 10th digit of the tariff number) have a stitch count of 9 or fewer stitches per 2 centimeters measured on the outer surface of the fabric, in the direction in which the stitches are formed. Also included in these statistical provisions are garments, known as sweaters, where, due to their construction (e.g., open-work raschel knitting), the stitches on the outer surface cannot be counted in the direction in which the stitches are formed. Garments with a full-front opening but which lack the proper stitch count for classification as a sweater may be considered “sweater-like” cardigans of heading 6110.

See, U.S. Customs Service, What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUS, 34 Cust. B. & Dec. 52, 153 (Dec 27, 2000).

Furthermore, reference to The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (Guidelines) is appropriate in this case. The Guidelines were developed and revised in accordance with the HTSUSA to ensure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles. The Guidelines provide a similar description for sweaters. Notably, the Guidelines indicate that garments commercially known as sweaters or pullovers cover the upper body from the neck or shoulders to the waist or below. The EN to heading 6110, HTSUSA, also indicate that the heading covers garments designed to cover the upper parts of the body.

In NY I84948, dated August 26, 2002, Customs classified five styles of women’s garments, identified as S31DW270, S31DW271, S31DW272, S31DW279 and S31DW384, as sweater-like cardigans and pullovers of heading 6110, HTSUSA. Regarding the classification of the garments considered in NY I84948 as being similar to sweaters, we disagree. The garments lack the general appearance of sweaters and are not commercially recognized as sweaters. Merely because they cover the upper body and are worn as outer-garments (in this case, over swimwear) does not make them classifiable as a sweater. As the articles lack the general characteristics of the garments of heading 6110, HTSUSA, they are not classifiable as sweaters and similar articles.

Heading 6108, HTSUSA, provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.” The EN provide the following relevant guidance as to the scope of heading 6108:

This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely . . . and nightdresses, pyjamas, negliges, bathrobes (including beachrobes), dressing gowns and similar articles.

The Guidelines state the following to describe the characteristics of dressing gowns, which include bath robes, beach robes, lounging robes and similar apparel:

Physical characteristics which are expected in garments included in this category include:

Looseness.

Length, reaching to the mid-thigh or below.

3) Usually a full or partial opening, with or without a means of closure.

Sleeves are usually, but not necessarily, present.

In HQ 964641, dated May 21, 2001, Customs stated the following:

“beachrobes,” included in the parenthetical following bathrobes, have the same features and functions as bathrobes, although they are worn in a different setting. They are designed to be worn after the wearer has been in the water. They absorb water, provide warmth, protect the body, and cover the body for modesty purposes.

In HQ 088266, dated March 22, 1991, Customs classified a women’s knit cover-up in subheading 6108.91.0030, HTSUSA. The garment considered was designed as loose fitting, with short sleeves, and extended from the shoulder to the mid-thigh or below. Notwithstanding that the garment lacked a full or partial opening, we determined that it was properly classified in heading 6108, HTSUSA, as a beach cover-up. In that ruling, we noted that the full or partial opening characteristic is prefaced with the term "usually" which meant it was not absolutely required.

Customs indicated in HQ 962385, dated July 27, 1999, that a crucial factor in the classification of a garment is the garment itself. See HQ 962385 wherein Customs classified a women’s robe in heading 6108, HTSUSA. As stated in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), at 552, "the merchandise itself may be strong evidence of use." When presented with a garment which is ambiguous in appearance, Customs looks to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. In HQ 962385, we noted that these factors should be considered in totality and that no one factor is determinative of classification.

In this case, the subject garments are recognizable as beach cover-ups. They are designed as loose fitting, with either long-sleeves, short-sleeves or no sleeves at all, and extend from the shoulder to the mid-thigh. Accordingly, the simple design, looseness and length of each of the garments under consideration are typical features of beach cover-up garments. Moreover, the subject garments are designed to be worn after the wearer has been in the water and protect the body and cover the body for modesty purposes. To varying degrees, each robe also serves to absorb water and provide warmth, regardless of the fact that none are made of terry cloth material. In addition, the submitted hangtags and design specifications for the garments indicate that they will be marketed and sold exclusively as beach cover-ups. Notably, the court in Mast Industries observed that most consumers use a garment in the manner in which it is marketed. Therefore, we find it unlikely that the subject garments will be principally used as something other than beach cover-ups. Therefore, like the garment in HQ 088266, the subject garments are properly classified in heading 6108, HTSUSA, as beach cover-ups. This finding is consistent with NY H80783, dated June 20, 2001, wherein Customs classified similar beach robes under heading 6108, HTSUSA. See also HQ 964641, dated May 21, 2001 and HQ 962385, dated July 27, 1999.

HOLDING:

The styles identified as S21DW311, S21DW317, S21DW318, S31DW270, S31DW271 and S31DW384 are classified under subheading 6108.91.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton, Other: Women’s.” The general column one duty rate is 8.6 percent ad valorem and the items fall within textile category designation 350.

The styles identified as S31DW272, S31DW279 and S21DW316 are classified under subheading 6108.92.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of man-made fibers, Other: Women’s.” The general column one duty rate is 16.2 percent ad valorem and the items fall within textile category designation 650.

NY I84948 is hereby REVOKED. NY H87322 is hereby MODIFIED, in part. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

The designated textile and apparel category 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 your client 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. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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