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HQ 968116





June 2, 2006

CLA-2 RR:CTF:TCM 968116 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2077

Ms. Karen Wilder
Gymboree Manufacturing, Inc.
700 Airport Blvd., Suite Number 200
Burlingame, CA 94010

RE: Classification of a girl’s knit cotton cardigan made in China; statistical note 6 to Chapter 61, HTSUSA; “knit to shape”

Dear Ms. Wilder:

This is in reply to your letter dated January 17, 2006, to the National Commodity Specialist Division (“NCSD”) on behalf of Gymboree Manufacturing, Inc. (“Gymboree”), submitted pursuant to 19 C.F.R. §177, requesting the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of a certain girl’s knit cotton cardigan made in China. Your letter has been forwarded to this office for a reply.

FACTS:

The certain jersey knit cotton cardigan at issue is identified by Gymboree as “Ref# 91002.” The garment is 100% percent cotton. It is a short sleeve crew neck cardigan that opens down the front with 5 small buttons. It contains embroidery work on the front panels. In its letter, Gymboree requests the classification of the garment in girls’ and toddler girls’ sizes.

The garment is assembled from eight components: one back panel, two front panels, two sleeve panels, two placket strips and one neckband. The garment has a stitch count of 14 stitches per 2 centimeters, except for the placket strips which have a stitch count of 27 stitches per 2 centimeters.

According to Gymboree, the eight components are knit to shape on flatbed-knitting machines and are in a condition ready for assembly when they are produced. Gymboree also stated that the assembly of Ref# 91002 is accomplished through a “linking process,” which it described in its January 17, 2006 letter as follows:

There is no cutting or trimming done to the panels prior to joining with the other components. The components are “linked” together. Pleas e [sic] note, however, that after the linking is completed, the shoulder seams are given overlock stitching (using an overlock sewing machine) and mobilon tape (thermoplastic polyurethane tape that is cut to length) is inserted under the overlock stitching in order to stabilize the shoulder seams and achieve a smooth and clean looking seams finish. At this time, the overlock machine also cuts away the excess yarns at the shoulder seams that are sticking out after linking. Please also note that after linking, other excess yarns in the other “knit to s hape” [sic] components (yarns that are present to facilitate “gripping” the components by the linking worker during the linking operation) are removed by hand. The embroidery artwork is applied to the front of the garment after linking. Finally, the “buttonholing” operation to the linked front right panel results in cutting button holes into the front panel and facing, and sewing open the button hole.

While not stated in your letter, we note that the garment has minor stitching at the top and bottom on the back of the placket panel. This stitching measures less than one inch in both places.

In its letter, Gymboree specifically states that its ruling request was submitted “ in order to determine if the production facts of the garment and its physical features properly place the toddler girls’ and girls ’ s izes [sic] of this garment under classification 6110.20.2077” which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other, Other: Other: Women’s or girls’: Knit to shape articles described in statistical note 6 to this chapter.”

ISSUE:

Is Ref# 91002 a “knit to shape” article described by statistical note 6 to Chapter 61, HTSUSA?

What is the classification of the Ref# 91002?

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).

Heading 6110, HTSUSA, provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” The EN to heading 6110, in pertinent part, state that the heading 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).”

When classifying garments under the HTSUSA, it is often helpful 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.

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.

Ref# 91002 is a knit garment designed to cover one’s upper body. Due to the garment’s fabric and construction, we find Ref# 91002 to clearly be an article that is commonly and commercially recognized as a “sweater.” As a result, we find that heading 6110, HTSUSA, provides for the article. Note that Ref# 91002 cannot be considered a girl’s blouse, shirt, or shirt-blouse of heading 6106, HTSUSA, because it has an average of 10 or fewer stitches per linear centimeter. See Note 4 to Chapter 61, HTSUSA. See also the EN to heading 6106.

Now that we have determined that Ref# 91002 is classified in heading 6110, HTSUSA, we turn to the garment’s classification at the subheading level, which is made in accordance with GRI 6, which states:

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

While heading 6110, HTSUSA, provides for the garment, Ref# 91002 cannot be considered a “sweater” at the statistical level because it has a stitch count greater than 9 stitches per 2 centimeters measured on the outer surface of the fabric, in the direction in which the stitches are formed. See Statistical Note 3 to Chapter 61, HTSUSA, which sets forth stitch requirements for sweaters at the statistical level; see also the working definition in the Apparel Terminology ICP provided for “sweaters” which reflects the Statistical Note 3 to Chapter 61, HTSUSA, stitch requirement. In this situation, while there is a statistical note that states what the statistical provisions for “sweaters” includes, that note does not (and at that level cannot) control the definition of a sweater at the four digit heading level. See HQ 951629, dated August 21, 1992, and HQ 081396, dated November 30, 1988. A garment may be commonly and commercially known as a sweater and yet not fall within the requirements of the statistical note for inclusion under a sweater annotation. See HQ 951629.

As set forth in the working definition above, as a garment with a full-front opening lacking the proper stitch count for classification as a sweater at the statistical level, Ref# 91002 may still be considered a “sweater-like” cardigan of heading 6110, HTSUSA. Note that the description of Ref# 91002 as a “cardigan” only expresses that the garment opens down the front and this description is not dispositive as to the article’s classification. See generally HQ 084166, dated August 4, 1989; see also HQ 951629.

In this case, based on the garment’s material and construction, Ref# 91002 is classified clearly to the 8 digit level. It is evident that the garment is made of cotton and is therefore classified in subheading 6110.20, HTSUSA, at the 6 digit level. It is also apparent that the garment is described at the 8 digit level by subheading 6110.20.20, HTSUSA (“Other”) because no other 8 digit level subheading describes the garment. The subheadings under consideration for classification of Ref# 91002 at the 9 and 10 digit level (the statistical level) are: subheading 6110.20.2077, HTSUSA, which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other, Other: Other: Women’s or girls’: Knit to shape articles described in statistical note 6 to [Chapter 61, HTSUSA]” and subheading 6110.20.2079, HTSUSA, which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other, Other: Other: Women’s or girls’: Other.”

The determinative issue regarding classification of the garment at the statistical level is whether Ref# 91002 is a “knit to shape” article described in statistical note 6 to Chapter 61, HTSUSA, which states:

For the purposes of statistical reporting under heading 6110, the term "knit to shape" means garments knit to shape on flat-knitting machines, having a stitch count exceeding 9 stitches per 2 centimeters, but less than or equal to 18 stitches per 2 centimeters, measured on the outer surface of the fabric, in the direction in which the stitches are formed. For purposes of this statistical note, in the instances where both knit and purl stitches are usually counted, the purl stitches will be disregarded, and only the knit stitches on the outer surface of the fabric will be counted. All of the garment's components, which include, but are not limited to, collars, plackets, cuffs, waistbands and pockets, are knit to shape. All of the components are assembled by looping and linking, including the side seams.

Based on our thorough review of the garment, we find Ref# 91002 to be a knit to shape article described by statistical note 6 to Chapter 61, HTSUSA. Consequently, the garment is classified at the 9 and 10 digit level in subheading 6110.20.2077, HTSUSA.

We would like to point out several of the garment’s features that are acceptable under the note. First, the garment has an acceptable stitch count. While a component (the placket) has a stitch count outside the parameters allowed under the note, the garment has a stitch count within the allowable range. Second, while the shoulders are combined initially by linking and looping, the shoulder seams are later stitched with an overlock machine. The overlock machine also cuts away excess yarns at the shoulder seams that are protruding after linking. As a general rule, cutting a component is not allowed under the note. However, there are two exceptions: (1) cutting along acceptable clear and continuous lines of demarcation at the neckline, armhole, center placket or pocket opening is acceptable, and (2) cutting to form the shoulder slope is allowed. The shoulder seam may be reinforced with overlock stitching (and reinforcement tape) but the shoulder seam must also be linked or looped. In the instance at hand, we find the stitching and trimming done by the overlock machine to be allowed pursuant to the second exception set forth above. These processes cut the shoulder slope to form and reinforce it after it has been linked and looped. Third, the embroidery work on the front panel of the garment is allowed. This embroidery work is not relevant to the creation of the garment or any of its components. Fourth, the “buttonholing” operation is allowed as it, too, is not relevant to the creation of the garment or any of its components. Fifth, the stitching at the top and bottom on the back of the placket panel is acceptable as it is minor stitching done in a location on the garment where it is not possible to attach the placket by linking and looping.

HOLDING:

The certain girl’s cotton cardigan identified as “Ref# 91002” is classified in subheading 6110.20.2077, HTSUSA, which provides for: “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other, Other: Other: Women’s or girls’: Knit to shape articles described in statistical note 6 to this chapter.” The garment falls into textile category 339. The applicable column one general rate of duty under the 2006 HTSUSA is 16.5% ad valorem.

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.

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.

Sincerely,

Gail A. Hamill, Chief

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