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HQ 967845





July 5, 2006

CLA-2 RR:CR:TE 967845 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.30.3059

Sandy Stubblefield
Augusta Sportswear
P.O. Box 14939
Augusta, GA 30919

RE: Classification of a woman’s knit cardigan from China or Taiwan; NY L84219 affirmed

Dear Ms. Stubblefield:

This is in reply to your letter dated July 13, 2005 to the National Commodity Specialist Division (“NCSD”) requesting reconsideration of New York Ruling Letter (“NY”) L84219, dated May 12, 2005. As you know, your letter has been forwarded to this office for a reply.

In NY L84219, U.S. Customs and Border Protection (“CBP”) classified a “woman’s upper body garment” identified as “style 4340” in subheading 6110.30.3055, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other, Other: Other: Women’s or girls’.” Pursuant to your request, we have reviewed NY L84219. This ruling, HQ 967845, affirms the holding in NY L84219. Note that the statistical suffix for the article has changed since the issuance of NY L84219, as subheading 6110.30.3055 was deleted and subheading 6110.30.3059 was added effective January 1, 2006.

FACTS:

In NY L84219, the garment at issue was described as:
style 4340, is a woman’s cardigan constructed from 100% polyester knit fabric. The outer surface of the garment measures more than nine stitches per two centimeters in the horizontal direction. The garment features a mock collar, a full front zippered opening, long hemmed sleeves, two front pockets, and a hemmed bottom.

While not stated in NY L84219, according to CBP testing, the garment’s knit fabric weighs 6.6 ounces per square yard. You do not claim that the garment is water or wind resistant.

In your July 13, 2005, letter, you state that style 4340 is marketed and sold as a “ladies jacket.” You inquire if style 4340 could be classified in heading 6102.30.2010, HTSUSA, which provides: “Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6104: Of man-made fibers: Other: Other, Women’s.”

ISSUE:

Whether style 4340 is classified in heading 6110, HTSUSA, as an article similar to a knit sweater, or in heading 6102, HTSUSA, as an article similar to a knit women’s anorak or windbreaker.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

GRI 1 states that in order to determine a product's proper classification, one must first look to the heading and section or chapter notes, and then inquire as to the relevant subheading. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1440 (Fed. Cir. 1998). In this case, there are no section or chapter notes relevant to the classification of style 4340. The headings under consideration for classification of style 4340 are: Heading 6110, HTSUSA, which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted” and heading 6102, HTSUSA, which provides for: “Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6104.”

The EN to heading 6110 state, in relevant part, that:

[Heading 6110] covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles).

The EN to heading 6102 state that the provisions of the EN to heading 6101 apply mutatis mutandis to the articles of this heading. The EN to heading 6101, in turn, state, in relevant part:

This heading covers a category of knitted or crocheted garments for men or boys, characterised by the fact that they are generally worn over all other clothing for protection against the weather.

It includes :

Overcoats, raincoats, car-coats, capes including ponchos, cloaks, anoraks including ski-jackets, wind-cheaters, wind-jackets and similar articles, such as three-quarter coats, greatcoats, hooded capes, duffel coats, trench coats, gabardines, parkas, padded waistcoats.

CBP recognizes that certain garments may be ambiguous for classification purposes because they possess features of both an article of heading 6110, HTSUSA, and an article of heading 6102, HTSUSA. See, e.g., Headquarters Ruling Letter (“HQ”) 964430, dated November 28, 2000, and HQ 965137, dated September 12, 2002, both on the classification of women’s knit wearing apparel. We find the style at issue, style 4340, to be a garment of this nature, as it exhibits similarities to articles provided for in both headings, specifically in regard to its coverage and full-front opening.

In NY L84219, style 4340 is described as a “cardigan.” This description, however, only expresses that the article opens down the front. Both articles of heading 6110, HTSUSA, and heading 6102, HTSUSA, can be cardigans. See generally HQ 084166, dated August 4, 1989. “Cardigan,” therefore, only refers to the styling of the garment and the description is not dispositive as to the article’s classification. Id.

When the identity of a garment is ambiguous for classification purposes, it is appropriate to consult CBP’s Informed Compliance Publication entitled, “What Every Member of the Trade Community Should Know About: Apparel Terminology under the HTSUS,” which was revised in May 2005 (“Apparel Terminology ICP”). The Apparel Terminology ICP provides a brief guide for classifying apparel under chapters 61 and 62 of the HTSUSA, and a glossary of working definitions for the apparel-related provisions that appear in those chapters. While the glossary in the Apparel Terminology ICP is not definitive, it does serve as an aid to importers and other interested parties regarding apparel-related terms that appear in the HTSUSA.

In this case, a review of the definitions of the named articles in heading 6110, HTSUSA, and 6102, HTSUSA, to which style 4340 is most comparable is helpful. The working definition in the Apparel Terminology ICP provided for “anoraks, windbreakers and similar articles,” including those of heading 6102, HTSUSA, states in relevant part, that:

[it] is a group of garments which includes:

Jackets, which are garments designed to be worn over another garment, for protection against the elements. Jackets cover the upper body from the neck area to the waist area, but are generally less than mid-thigh length. They normally have a full front opening, although some jackets may have only a partial front opening. Jackets usually have long sleeves. Knit jackets (due to the particular character of knit fabric) generally have tightening elements at the cuffs and at the waist or bottom of the garment, although children’s garments or garments made of heavier material might not need these tightening elements. This term excludes knit garments that fail to qualify as jackets because they do not provide sufficient protection against the elements. Such garments, if they have full-front openings, may be considered cardigans of heading 6110 (other).

Garments similar to sweaters with full front openings, which have a sherpa lining or a heavy weight fiberfill lining (including quilted linings), that are used to provide warmth to the wearer.

The working definition in the Apparel Terminology ICP provided for “sweaters,” including those of heading 6110, HTSUSA, states in relevant part, that:

[they] are 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.

This term excludes garments that have a sherpa lining or a heavyweight fiberfill lining (including quilted lining), which are used to provide extra warmth to the wearer. Such garments, whether or not they have a sweater stitch-count, are classified in heading 6101 or 6102.

As reflected in the pertinent EN and the Apparel Terminology ICP working definitions, garments of heading 6102 are worn over all other clothing for protection against the elements. Such garments are worn principally outdoors, where they can provide such protection to the wearer. See HQ 964430. On the other hand, garments classified as similar to sweaters of heading 6110, HTSUSA, may serve a dual purpose in that they may be worn either indoors or outdoors. Id. An examination of how the article at issue will be worn is therefore necessary in determining its classification.

After thoroughly evaluating style 4340, it is the opinion of this office that the garment does not provide the degree of protection against the elements generally associated with jackets classified in heading 6102, HTSUSA. The garment does not provide any protection against inclement weather greater than an ordinary sweater, pullover, or sweatshirt. Like these articles, style 4340 only provides the wearer with some additional warmth, not additional protection against wind, rain, etc. The garment also lacks tightening elements at the cuffs and waist which are usual for jackets of heading 6102, HTSUSA. Style 4340’s front zipper is also quite small and not of the same weight and durability as the zippers generally featured in the exemplars of heading 6102, HTSUSA.

Although fabric weight is not an absolute indicator of a garment’s status for classification purposes, it does provide some indication as to a garment’s suitability for different uses. Ten ounces per square yard or higher has generally been used as a fabric weight indicative of a jacket of heading 6102, HTSUSA. See, e.g. HQ 964430 and HQ 965137. However, we recognize that certain articles of heading 6102, such as windbreakers, may have fabric weights less than 10 ounces per square yard. In this instance, the fabric weight of style 4340 measures 6.6 ounces per square yard and is akin to that found in sweaters, sweatshirts, or pullovers and not jackets of heading 6102, HTSUSA.

In our view, the garment’s lightweight fabric, coupled with its styling, illustrates that it will be worn either indoors or outdoors, like a sweater, sweatshirt, or pullover. While we recognize that the garment will be worn over another garment (such as a t-shirt), it will not be worn over all other clothing for protection against the elements.

Style 4340 has a stitch count of 9 or more stitches per two centimeters measured on the outer surface of its fabric, in the direction in which the stitches are formed. While this stitch count is too high for the garment to be classified as a “sweater” pursuant to Statistical Note 3 to Chapter 61, HTSUSA, style 4340 can still be considered a “sweater-like” cardigan of heading 6110, HTSUSA. See Apparel Terminology ICP (working definition of “sweaters”).

While style 4340 may be marketed and sold as a “jacket,” the combination of its fabric weight and styling cause this office to conclude that the garment will be worn indoors and outdoors, in a manner similar to a sweater, sweatshirt, or pullover and not as an outer layer for protection against the weather. As a result, we find the garment to be classified in heading 6110, HTSUSA, as an article similar to a knit sweater, specifically a knit “sweater-like” cardigan.

HOLDING:

The woman’s upper body garment identified as “style 4340” is classified in subheading 6110.30.3059, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other, Other: Other: Women’s or girls’: Other.” The applicable column one, general rate of duty for the merchandise under the 2006 HTSUSA is 32% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Style 4340 falls within textile category 639. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (“WTO”) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

EFFECT ON OTHER RULINGS:

NY L84219, dated May 12, 2005, is affirmed.

Sincerely,

Myles B. Harmon, Director

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