CLA-2 RR:CR:TE 965231 SS
Joanna Cheung, Trade Specialist
Hong Kong Economic and Trade Office
1520 18th Street, N.W.
Washington, D.C. 20036
Re: Reconsideration of a Women’s Knit Upper Body Garment
Dear Ms. Cheung:
This letter is in response to your request dated August 27, 2001, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a woman’s knit upper body garment. A sample was submitted to this office for examination.
FACTS:
You state that the submitted sample, identified as style number 12546, is a women’s knit upper body garment composed of 44.7 percent ramie, 38.2 percent cotton, 9.8 percent polyester, 5.3 percent metallic (4.35 percent polyester and .95 percent metallic component), 1.6 percent nylon and .4 percent spandex. The pullover garment features one shoulder styling. In the front and back, the upper edge of the garment slants from under the arm on one side and extends diagonally upward to cover the shoulder on the other side. The garment has one long sleeve and extends just past the waist.
In New York Ruling Letter (NY) H82818, dated July 20, 2001, the subject garment was classified as a top in subheading 6114.90.9010, HTSUSA, with a corresponding textile quota category of 838. You disagree with this classification and claim that the garment should be classified under textile quota category 359 as a “cotton other garment.” You claim that the garment was classified under category 838 due to lack of statistical breakouts in the HTSUSA. You also claim that since the garment has shoulder coverage on one side and the body length extends below the waistline, the garment does not possess features of a “top” under category 838 or 338/339.
ISSUE:
What is the proper classification for the women’s knit upper body garment?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRI”). 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 three headings present themselves for initial consideration: heading 6106, HTSUSA, which provides for, inter alia, women’s knitted shirts; heading 6110, HTSUSA, which provides for, inter alia, women’s knitted sweaters, pullovers and similar articles; and heading 6114, HTSUSA, which provides for, inter alia, other women’s knitted garments.
Heading 6106, HTSUSA, covers “[w]omen’s or girls’ blouses and shirts, knitted or crocheted.” In a recent informed compliance publication, Customs provided basic definitions of apparel terms which are commonly utilized in the HTSUSA and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. The informed compliance publication describes knit shirts as:
“garments designed to cover the upper part of the body and extend from the neck area to or below the waist. The amount of coverage afforded the wearer includes shoulder, armhole and neckline. These garments may have sleeves of any length or no sleeves. They may have a collar treatment of any type, including a hood, or no collar. Garments of this heading must have a full or partial opening, starting at the neckline.”
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 description of women’s knit shirts similar to the one set forth in the apparel terminology informed compliance publication. Notably, the description provides that women’s knit shirts reach from the neck area to the vicinity of the waist and that garments with oversized or excessively revealing arm or neck openings are excluded from consideration as shirts.
It is evident from the above descriptions that garments of heading 6106, HTSUSA, are generally designed to cover the upper body from the neck area to the waist or below. The instant garment does not reach the neck area nor does it cover enough of the upper body to be considered a shirt of heading 6106, HTSUSA. Furthermore, it provides no coverage for one shoulder, only has armhole coverage on one side and does not have a neckline. Lastly, Customs finds that the arm or neck opening is excessively revealing for consideration as a shirt of Heading 6106, HTSUSA. Accordingly, the instant garment does not provide adequate coverage to be considered a garment of heading 6106, HTSUSA.
Heading 6110, HTSUSA, covers “[s]weaters, pullovers, sweatshirts, wasitcoats (vests) and similar articles, knitted or crocheted.” The 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).
The Guidelines provide a similar description for sweaters. It is worth noting that 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.
Customs has consistently held that in order for a garment to be classified in heading 6110, HTSUSA, the garment must at a minimum feature adequate “coverage” of the upper part of the body. See HQ 963597, dated December 21, 1999; HQ 962161, dated December 29, 1998; and HQ 962123, dated December 29, 1998. In the rulings cited above, Customs found that garments with an upper back that was cut straight across from side seam to side seam lacked adequate shoulder coverage and failed to meet the requisite coverage requirement for classification in heading 6110, HTSUSA. Similarly, the styling of the subject garment, with an upper front that is cut diagonally across from one side seam to the top of the opposite shoulder seam, lacks adequate shoulder coverage and thus fails to meet the requisite coverage requirement for classification in heading 6110, HTSUSA.
Heading 6114, HTSUSA, provides for “[o]ther garments, knitted or crocheted.” The EN to that heading state that, “this heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.” Accordingly, the subject garment, which because of distinct styling features is precluded from classification in headings 6106 and 6110, HTSUSA, is properly classified as an other garment of heading 6114, HTSUSA.
Because the garment at issue is constructed of a combination of textile materials, a determination must be made as to which of those materials will be determinative for classification purposes at the subheading level. A fiber analysis completed by Customs Laboratories and Scientific Service reports the following fiber content of the garment: 47.4 percent ramie, 35.7 percent cotton, 9.6 percent polyester, 5.2 percent metalized strip, 1.6 percent nylon and .5 percent spandex. The garment is constructed of four yarns: two 2-ply yarns of
ramie and cotton, one yarn of 1-ply nylon and 1-ply spandex, and one yarn of 1-ply metallic strip and 1-ply polyester.
The appropriate fiber content of a garment containing metallic yarn requires consideration of Section XI, subheading note 2(A) and Section XI, note 2. Section XI, subheading note 2(A) states that:
Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 consisting of the same textile materials.
Section XI, note 2, states that:
Goods classifiable in chapters 50 to 55 or in headings 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
. . .
For the purposes of the above rule:
. . . metalized yarn (heading 5605)(is) to be treated as a single textile material the weight of which is to be taken as the aggregate of the weight of its components;
In the garment at issue, the metallic yarn is comprised of 1-ply metallic strip and 1-ply polyester. Applying note 2(B)(a) to Section XI, set forth above, the metalized and polyester plied yarn is considered to be one metalized yarn, and in this instance makes up 14.8 percent of the weight of the fabric. The garment is composed of 47.4 percent ramie and is considered to be in chief weight of ramie fibers. You agree with the classification of the garment through the eight-digit subheading level. The garment is classified under subheading 6114.90.90, HTSUSA, as an other garment, of other textile materials, other than one containing 70 percent or more by weight of silk or silk waste.
The main disagreement is the classification of the garment at the ten-digit subheading level or statistical level. You claim that “tops” usually cover the chest area only and do not reach the shoulders or waist. Since the instant garment covers one shoulder and reaches the waist, you believe the garment should not be classified as a “top” but rather as an “other” garment in the residual provision of subheading 6114.90.90, HTSUSA.
The apparel terminology informed compliance publication describes tops as:
“upper body garments that are not included more specifically in headings 6101-6113. Tops generally have limited coverage of the neck and shoulder area, and/or do not reach the waist. Garments lacking coverage of the neck and shoulder area may have shoulder straps, a halter neckline, or no straps. The front and/or back of the garment may be cut straight across from side seam to side seam. Terms sometimes used to describe these garments are halter-tops, tube tops or camisoles. All of these garments are classified in the specific subheadings for tops in 6114.”
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).
The Guidelines also offer a similar description of tops. It is worth noting that the Guidelines indicate that tops include tube-type garments which may or may not be waist length, having a straight top (with or without attached shoulder straps), and off-the-shoulder tops, which do not have a “neck-area” as required by the “shirt and blouse” guidelines. Furthermore, the Guidelines state that garments with oversized or excessively revealing arm or neck openings are considered tops.
Applying the description found in the apparel terminology informed compliance publication, we note that the instant garment provides limited coverage of the neck and shoulder area. Applying the description found in the Guidelines, the instant garment does not have a neck-area and has excessively revealing arm or neck openings. Furthermore, it is clear from both sources that a top may reach the waist. Thus, we find your argument that the garment does not meet the definition of tops to be unpersuasive. Customs believes the garment meets the descriptions of tops and is properly classified as a top under subheading 6114.90.9010, HTSUSA. We note that this ruling is consistent with NY H81845, dated July 19, 2001, and Port Ruling Letter (PD) G88851, dated
April 17, 2001, which classified similar garments featuring one shoulder styling as tops under heading 6114, HTSUSA.
You contend that the garment should be classified under Category 359 as a cotton garment. As explained above, the garment is properly classified as a top under subheading 6114.90.9010, HTSUSA, which falls in textile category designation 838. There are no further statistical breakouts for tops. In other words, all tops made of other textile materials will require a Category 838 visa regardless of the cotton content. The cotton restraint provision of Statistical Note 2(a) to Section XI, HTSUSA, is not applicable to tops classified under subheading 6114.90.9010, HTSUSA.
To the extent that your request addresses discrepancies between the provisions of our tariff and the current agreement between Hong Kong and the United States, we suggest that your office address these concerns to Mr. Mike Hutchinson, Chairman for the Committee for the Implementation of Textile Agreements, Room 3100, U.S, Department of Commerce, 14th Street and Constitution Avenue, N.W. Washington, D.C. 20230.
HOLDING:
The woman’s knit top is classifiable in subheading 6114.90.9010, HTSUSA, textile category 838, the provision for “[o]ther garments, knitted or crocheted: Of other textile materials: Other, Tops.” The general column one duty rate is 5.7 percent ad valorem.
The designated textile and apparel category may be subdivided into parts. If so, 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 that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restrain Levels), an internal issuance of the U.S. Customs Service, which 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 applicable to textile merchandise, 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