CLA-2 CO:R:C:T 088978 CMR
Peter W. Klestadt, Esq.
Mark K. Neville, Jr., Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Reconsideration of DD 854705 of August 17, 1990;
Classification of sequined garments; plastic v. textile
Dear MM. Klestadt & Neville:
This ruling is in response to your request of March 22,
1991, on behalf of Adrienne Vittadini, Inc., for reconsideration
of DD 854705 of August 17, 1990. That ruling concerned the
classification of a woman's sequined blouse and sequined skirt
imported from Hong Kong.
FACTS:
The garments at issue, a woman's sequined blouse (style
W50765) and a woman's sequined skirt (style W50764), were
classified as textile knit wearing apparel in headings 6106,
HTSUSA, and 6104, HTSUSA, respectively, in DD 854705.
The garments are made of 100 percent cotton knit fabric.
The blouse features a full front opening secured by five plastic
square-shaped buttons, short sleeves, hemmed sleeves and bottom,
sewn-in shoulder pads, and a rounded neckline. The skirt is
straight with an elasticized self-fabric waistband and a hemmed
bottom. Neither garment is lined and each garment is covered
with round plastic sequins which are sewn onto the garments in an
overlapping pattern. The blouse is covered in a checkerboard
design created by black and silver sequins whereas the skirt is
covered with only black sequins.
Classification is being sought under heading 3926, HTSUSA,
as other articles of apparel of plastics, or in the alternative
as women's garments made up of knitted fabrics of heading 5903
and having an outer surface covered with plastic materials which
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completely obscures the underlying fabric under heading 6113,
HTSUSA, or as women's garments made up of knitted fabric of
heading 5903 which is also under heading 6113, HTSUSA.
ISSUE:
Are the garments at issue classifiable as textile wearing
apparel of Chapter 61 as ruled in DD 854705, or are the garments
classifiable as apparel of plastics of heading 3926, HTSUSA, or
as garments of heading 6113, HTSUSA?
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, provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
Customs agrees that each of the garments at issue appear to
be classifiable, prima facie, under two headings--heading 3926,
which provides for, among other things, articles of apparel and
clothing accessories of plastics [blouse and skirt]; and heading
6106, which provides for women's knitted blouses; and heading
6104, which provides for, among other things, women's knitted
skirts.
Note 1(h), Section XI, HTSUSA, excludes "[w]oven, knitted or
crocheted fabrics, felt or nonwovens, impregnated, coated,
covered or laminated with plastics, or articles thereof, of
Chapter 39" from coverage in Section XI. [emphasis added]. Note
1(l), Chapter 39, excludes goods of Section XI (textiles and
textile articles) from inclusion in Chapter 39. On the surface,
it would appear these notes are conflicting. Customs believes
they are not.
First, we must determine if the fabric from which the
garments are made is fabric impregnated, coated, covered or
laminated with plastics classifiable in Chapter 39. In the
Explanatory Notes, which are the official interpretation of the
HTS at the international level, in the general notes for Chapter
39, at page 554, plastics and textile combinations are discussed.
In pertinent part, the notes provide as follows:
[T]he classification of plastics and textile combinations is
essentially governed by Note 1 (h) to Section XI, Note 3 to
Chapter 56 and Note 2 to Chapter 59. The following products
are also covered by this Chapter:
* * *
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(b) Textile fabrics and nonwovens, either completely
embedded in plastics or entirely coated or covered on
both sides with such material, provided that such
coating or covering can be seen with the naked eye with
no account being taken of any resulting change of
colour;
* * *
(d) Plates, sheets and strip of cellular plastics
combined with textile fabrics, felt or nonwovens,
where the textile is present merely for reinforcing
purposes.
Note 3 to Chapter 56 is not applicable as it deals with felt and
nonwovens. Note 2 to Chapter 59 provides in pertinent part:
Heading No. 59.03 applies to:
(a) Textile fabrics, impregnated, coated, covered or
laminated with plastics, whatever the weight per square
metre and whatever the nature of the plastic material
(compact or cellular), other than:
* * *
(4) Fabrics partially coated or partially covered
with plastics and bearing designs resulting from
these treatments (usually Chapters 50 to 55, 58 or
60) [emphasis added];
(5) Plates, sheets or strip of cellular plastics,
combined with textile fabric, where the textile
fabric is present merely for reinforcing purposes
(Chapter 39); or
* * *
Reviewing the cited provisions, Customs finds no support for
classification of the subject garments in Chapter 39. The
sequins, or spangles, are not plates, sheets or strip of cellular
plastic, nor is the textile fabric present merely for reinforcing
purposes. In order for the knit fabric to be considered
classifiable in Chapter 39 it must be covered on both sides by
plastics, which it is not. If the fabric is not classifiable in
Chapter 39, an article of that fabric is not classifiable in
Chapter 39. Therefore, if the garments are not made from fabric
of Chapter 39, i.e., articles thereof, they are not excluded by
Note 1(h), Section XI, HTSUSA, from classification within Section
XI.
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You have proposed alternative classifications under heading
6113 as garments made up of knitted fabrics of heading 5903 and
having an outer surface covered with plastic materials which
completely obscures the underlying fabric (6113.00.0012,
HTSUSA) or as women's garments made up of knitted fabric of
heading 5903 (6113.00.0080, HTSUSA). Customs rejects this
proposal because we find that the garments are not made up of
fabric which is classifiable in heading 5903.
You have argued that the knit fabric is "covered" with
plastics and therefore the fabric is fabric of heading 5903.
Customs agrees the garments are covered with plastic sequins
which are sewn onto them. However, in Customs view, sewing
plastic sequins onto a fabric does not create a fabric "covered"
with plastics within the meaning of heading 5903. Customs
believes that fabrics of heading 5903 are fabrics which have been
impregnated, coated, covered or laminated with plastics by some
technical means or process so as to create a permanent bond, or
at least one not easily broken, between the plastics and textile
fabric. For example, the Explanatory Notes to heading 5903 refer
to processes for covering fabric with plastics as "treatments".
Attaching sequins by stitches is not a treatment. The sequins
are separate components joined to the fabric by thread. They are
not bound to the fabric to create a single component of mixed
composition.
At issue are knit garments which have been covered with
sequins attached by ordinary stitches. Heading 5810 which
provides for embroidery in the piece, in strips or in motifs,
furnishes clarification on the classification of the garments at
issue. Note 6, Chapter 58, HTSUSA, states:
In heading 58.10, the expression "embroidery" means, inter
alia, embroidery with metal or glass thread on a visible
ground of textile fabric, and sewn applique work of sequins,
beads or ornamental motifs of textile or other materials.
The heading does not apply to needlework tapestry (heading
No. 58.05).
The Explanatory Notes for heading 5810 describes applique work,
in pertinent part, as follows:
This consists of a ground of textile fabric or felt on
which are sewn, by embroidery or ordinary stitches:
(A) Beads, sequins or similar ornamental accessories;
these accessories are generally made of glass, gelatin,
metal or wood, and are sewn so as to produce a pattern
or a scattered design on the ground fabric.
* * *
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The heading does not cover:
* * *
(d) Embroidery (other than motifs) made up within the
meaning of Part (II) of the General Explanatory Note to
Section XI, whether or not in the form of finished
articles ready for use. Also individual articles of
embroidery, completely finished, ready for use as such,
which are embroidered directly in their final shape
without any further fabrication. This wide range of
articles is classified as made up articles (e.g.,
Chapter 61, 62, 63 or 65) and includes, for example,
handkerchiefs, bibs, cuffs, collars, bodices, dresses,
tray-cloths, table-centres, mantlepiece covers, table
mats and curtains.
* * *
The exclusionary note clearly indicates that embroidered
dresses, embroidered directly in their final shape without any
further fabrication, are classifiable in Chapters 61 or 62.
Customs believes that the garments at issue are embroidered after
they are in their final shape. The sequins on the blouse, style
W50765, create a checkerboard design. The sequins on the skirt,
style W50764, are sewn in lengthwise rows. While the lengthwise
rows are a repeated pattern, the sequins do not create a visually
discernable pattern or design. However, to classify sequined
garments differently solely based on the color of the sequins
with which the garments are covered would create a clear
inconsistency. Therefore, Customs will not distinguish garments
covered by sequins of one color from other sequined covered
garments for classification purposes. The garments at issue are
classifiable as knit garments in Chapter 61.
Having determined the classification of the garments based
on the terms of the headings and the relative section and chapter
notes, there is no need to go beyond General Rule of
Interpretation 1.
Customs recognizes that the classification of the goods in
question as wearing apparel of textiles is a departure from the
classification of these types of garments, i.e., completely
covered with sequins, under the previous Tariff Schedules of the
United States Annotated. However, the HTS is a new tariff with
new rules which will sometimes result in articles being
differently classified than they were under the previous tariff.
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HOLDING:
The garments at issue were correctly classified in DD
854705 of August 17, 1990. The blouse, style W50765, is
classified in subheading 6106.10.0010, HTSUSA, textile category
339, dutiable at 21 percent ad valorem. The skirt, style W50764,
is classified in subheading 6104.52.0010, HTSUSA, textile
category 342, dutiable at 8.8 percent ad valorem.
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 you 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
Commercial Rulings Division