CBP Ruling H022174

HQ H022174 September 7, 2010 CLA-2 OT: RR: CTF: TCM H022174 RES CATEGORY: Classification TARIFF NO.: 6102.20.0020 Robert Ryan Diversified Freight Logistics, Inc. P.O. Box 610629 Dallas Fort Worth Airport, TX 75261-0629 RE: Classification of a knit sweatshirt style jacket from Pakistan. Revocation of NY N003933, dated December 5, 2006. Dear Mr. Ryan: This is in response to your letter dated December 18, 2007, on behalf of your client Williamson Dickie Manufacturing Company ("Williamson-Dickie"), for reconsideration of New York Ruling Letter ("NY") N003933 issued on December 5, 2006. In NY N003933, U.S. Customs and Border Protection ("CBP") classified a knit sweatshirt style jacket as a men's or boy's jacket under heading 6101, Harmonized Tariff Schedule of the United States ("HTSUS"). CBP has determined that NY N003933 is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on June 9, 2010, in Volume 44, Number 24, of the Customs Bulletin. CBP did not receive any comments during the notice period. FACTS: The subject jacket, style number KW901, is composed of 80% cotton and 20% polyester, has a full front zipper opening, a hood, two side entry pockets, rib knit cuffs, and a rib knit waistband. It comes in the colors dark navy blue, black, and hunter green and in sizes from XS/4 up to XL/18-20. ISSUE: Whether the fleece jacket at issue is classified under heading 6101, HTSUS, as boys' wear or under heading 6102, HTSUS, as girls' wear? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be "determined according to the terms of the headings 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 2 through 6 may be applied in order. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS headings under consideration in this case are as follows: 6101 Men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103: 6102 Women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103: General Note ("GN") 9 to Chapter 61 states in relevant part that "[g]arments which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments." In determining whether garments are identifiable as men's or boys' or as women's or girls', CBP considers the following factors: (1) sizing, (2) construction, (3) styling, and (4) other factors such as packaging, labeling, etc. See HQ 952241, dated October 25, 1992, (citing Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories ("Textile Guidelines"), 53 Fed. Reg. 52564 (Dec. 28, 1988)). Other factors may be considered and any factor may be determinative by itself or in combination with one or more factors. Id. Other factors to consider include examining how an article is marketed and advertised. See St. Eve International, Inc. v. United States, 11 C.I.T. 224 (1987) (determining the classification of a garment based on an analysis of how it was advertised, marketed, and on an examination of the garment itself); Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff'd 786 F. 2d 144 (Fed. Cir. 1986), (classifying a garment based on an analysis of an examination of the garment, witness testimony, and marketing and advertising materials). See also HQ 967185, dated October 8, 2004, (stating that CBP's policy is to carefully examine the physical characteristics of the garments in question and when that is not substantially helpful, to also consider other extrinsic evidence, such as marketing materials, packaging, labeling, and invoices associated with the article). (1) Sizing: According to the Dickies 2007 Buyer's Guide ("Buyer's Guide"), the fleece jacket is sold in sizes XS/4 up to XL/18-20. The sample provided is a size XL/18-20. In the Buyer's Guide, Williamson-Dickie sells a variety of both boys' and girls' clothing in the XS/4 up to XL/18-20 scale of sizes. For example, boys' polo shirts and oxford shirts and girls' polo shirts and blouses come in this size scale. Additionally, because girls and boys from ages 5 until about 13 are similar in stature and weight, it is logical to assume that these sizes apply to both boys and girls and thus not indicative of being reserved for one sex over the other.1 Also noted is that in the Buyer's Guide two out of the other three kid's school uniform outerwear garments that are marketed as unisex are sold in the same size scale as the subject fleece jacket with the exception being the kid's Eisenhower Jacket, which does not come in XL/18-20 but comes in all the smaller sizes. Thus, because the size scale that the fleece jacket comes in covers both boys and girls, the factor of sizing weighs in favor of finding that the fleece jacket is a unisex garment and not simply boys' wear. (2) Construction: The fleece jacket material is 80% cotton and 20% polyester, which upon visual and tactile inspection has a medium weight and thickness. The zipper that runs the length of the front of the jacket is a basic copper colored zipper that is neither heavy duty nor delicate. The jacket has elastic around the hood, the cuffs of the arms, and around the waistband, which is not particularly tight. Overall, the jacket is sturdy and is neither feminine nor masculine in construction. There is nothing about the construction of the fleece jacket that would place it in either the boys' or girls' category of clothing. Instead, the construction of the jacket is neutral in regards to gender categorization. Therefore, because the factor of construction does not favor labeling the garment in any one gender category over the other, this factor supports finding that the fleece jacket is of a unisex construction. (3) Styling: The sample provided is dark navy blue. An examination of the fleece jacket reveals that when zipped up and laid flat on a table, the elastic on the bottom of the jacket causes it to taper slightly toward the waist. There are no markings, graphics, or tags on the outside of the jacket. It is simply plain with a full zipper, a hood, and side seam pockets. There are no prominent masculine or feminine features on the jacket. Therefore, in consideration of the shape and design of the fleece jacket, the style factor weighs in favor of its intended use as being a unisex garment. (4) Other factors: Other factors include things like how an article is marketed, advertised, and labeled. The fleece jacket is being marketed and advertised as a unisex garment in the Dickies 2007 Buyer's Guide as outwear for a line of school uniform clothing. Williamson-Dickie does sell separate lines of basic pieces, e.g., shirts, pants, skirts, for boys and girls uniforms. However, Williamson-Dickie markets and advertises their "kid's school uniform outerwear" as unisex and does not have separate lines based on gender for any type of kids' school outerwear. Additionally, the colors that Williamson-Dickie markets the jacket in are not reserved for boys only. In the Buyer's Guide, both the boys and girls school uniform clothing articles are sold in dark navy blue and black. There are no girls' clothes in hunter green. The outerwear colors of navy blue, black, and hunter green match the navy blue, white, and khaki colors of the girls' shorts, shirts, skirts, and pants as well as the boys' trousers and shirts. Additionally, the sizing, construction, styling, colors, and marketing of the Williamson-Dickie fleece jacket is similar to the Lands' End Thermacheck Hoodie that CBP classified in NY N044979, dated November 25, 2008, as a unisex jacket2. The Thermacheck Hoodie comes in the same range of sizes as the fleece jacket, has the same styling, and is marketed as unisex outerwear for kids' uniforms. Therefore, these other factors, the way the fleece jacket is marketed and advertised, weigh in favor of finding that the garment is intended to be used by both boys and girls and hence is a unisex article of clothing. Overall, an analysis of the factors provided in the Textile Guidelines and used in HQ952241-the sizing, construction, styling, advertising and marketing of the garment-along with how CBP has classified other similar articles of clothing, weigh in favor of finding that the fleece jacket is intended to be used by both girls and boys as part of a line of school uniforms and, hence, is identifiable as a unisex garment. Pursuant to GN 9 to Chapter 61 of the HTSUS, the fleece jacket is classified in heading 6102, HTSUS, as "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." HOLDING: Pursuant to GRI 1 and GN 9 to Chapter 61,the knit sweatshirt style jacket, style number KW901, is classified under subheading 6102.20.0020, 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: Of cotton: Girls." The 2010 column one rate of duty is 15.9% and the visa category is 335. 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 quota categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, we suggest your client check the Textile Status Report for Absolute Quotas at www.cbp.gov close to the time of shipment to obtain the most current information available. EFFECT ON OTHER RULINGS: NY N003933, dated December 5, 2006, is hereby REVOKED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 1 Although, starting at around age 11, girls on average are slightly taller and weigh more than boys up to around age 13. See http://www.cdc.gov/growthcharts/clinical_charts.htm#Set1 (last visited Jan. 29, 2010). See Also http://www.walmart.com/cservice/contextual_help_popup.gsp?modId=1061624#girls_regular (last visited Jan. 29, 2010). 2 For comparison, see http://www.landsend.com/pp/UniformZipfrontHoodedJacket~171686_7.html?bcc=y&action=order_more&sku_0=::EVE&CM_MERCH=IDX_00013__0000000690&origin=index (last visited March 12, 2010) ?? ?? ?? ?? 2