Modification of PeC 868369; jacket; sweater

HQ 951638 July 14, 1992 CLA-2 CO:R:C:T 951638 CAB CATEGORY: Classification TARIFF NO.: 6110.20.2075 Ms. Patricia C. Valentine Chico's F A S, Incorporated 15550 McGregor Boulevard Fort Myers, FL 33908 RE: Modification of PeC 868369; jacket; sweater Dear Ms. Valentine: This letter is in response to your request for reconsideration of Pre-entry Classification (PeC) 868369 dated, November 26, 1991, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), concerning the tariff classification of women's knit garments. Two samples were submitted for examination. FACTS: Style 9013A is a women's 100 percent cotton knit garment that is described as a "longshoreman's jacket" by the importer. The garment has a full front opening with five plastic button closures; a shirt-type collar; two large pockets without flaps below the waist; a hemmed bottom; and long over-sized raglan sleeves that are hemmed at the cuffs. Style 901212 is a women's 100 percent cotton knit garment that is described as a "worker's jacket" by the importer. The garment contains a full front opening with four metal button closures; a shirt-type collar; two large pockets without flaps below the waist; hemmed cuffs; and a hemmed bottom. Both garments are constructed from knit fabric that has more than nine stitches per two centimeters measured in the horizontal direction. Also, both garments are labeled as "one size fits all", and extend from the neck and shoulders to the hip. PeC 868369 classified the garments in Heading 6102, HTSUSA, which provides for women's overcoats...and similar articles. ISSUE: Whether the merchandise in question is classifiable as sweaters, pullovers... and similar articles in Heading 6110, or as an overcoat in Heading 6102? LAW AND ANALYSIS: Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Heading 6102 provides for women's or girls' overcoats, carcoats, cape cloaks, anoraks (including ski-jackets), wind- breakers and similar articles, knitted or crocheted, other than those of Heading 6104. However, the merchandise at issue is not necessarily classifiable under Heading 6102 simply because it is worn over other outer clothing. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN to Heading 6102 declare that garments classified in that heading are generally worn over other clothing for protection against the weather. In this instance, the fabric forming the sample garments provides for warmth, but does not contain any of the characteristics of an overcoat (e.g. insulation, or thickness) which would protect the wearer against the elements. Heading 6110 provides for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. The EN to Heading 6110 state that the heading covers a category of knitted or crocheted articles, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles). The Textile and Apparel Category Guidelines, C.I.E. 13/88, are sometimes used as a guide when determining the common or commercial designation of textile articles. You cite C.I.E. to substantiate your claim that the instant garments are classifiable as jackets in Textile And Apparel Category 335. However, C.I.E. 13/88 states that garments having features of both jackets and shirts are classifiable as jackets if they possess at least three of the enumerated features listed under that category. Although not determinative of tariff classification, the instant garments only contain two of the enumerated features which are indicative of jackets. These two features are: pockets below the waist; and long sleeves without cuffs. Given the fabric content, and the construction, the subject merchandise is classifiable in Heading 6110. Under Heading 6110, sweaters are provided for only at the statistical (10 digit) level. Thus, Statistical Note 3, Chapter 61, Section XI, HTSUSA, defines sweaters as follows: For purposes of this chapter, statistical provisions for sweaters include garments, whether or not known as pullovers, vests or cardigans, the outer surfaces of which are constructed essentially with 9 or fewer stitches per 2 centimeters measured in the horizontal direction. Despite the stitch count, the sample in all respects, including the fabric content, and the construction, is classifiable as a sweater. Since sweaters are only provided for at the statistical, instead of the legal level, Statistical Note 3 prevents the classification of the garment under an annotation for sweaters. Therefore, the garment is classifiable under a basket provision for women's or girls' other knit cotton articles which are similar to sweaters, in subheading 6110.20.2075. HOLDING: Based on the foregoing, the instant garments are properly classifiable in subheading 6110.20.2075, HTSUSA, which provides for sweaters, pullovers...and similar articles, knitted or crocheted: of cotton; other; other; women's. The rate of duty is 20.7 percent ad valorem, and the textile category is 339. In order to ensure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying PeC 868369 to reflect the above classification effective with the date of this letter. However, if after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of the date of this letter. This notice to you should be considered a modification of PeC 868369 under 10 CFR 177.9(d)(1). It is not be applied retroactively to PeC 868369 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions of merchandise of this type, PeC 868369 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may at your discretion, notify this office and apply for such relief from the binding effects as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies. Sincerely, John Durant, Director Commercial Rulings Division