Revocation of NY N052662, dated March 3, 2009; Classification of a women’s upper-body garment

HQ H055795 August 3, 2011 CLA-2 OT:RR:CTF:TCM H055795 JRB CATEGORY: Classification TARIFF NO.: 6211.42.00 Ms. Anita Lee Trade Compliance Supervisor Marubeni America Corporation 375 Lexington Avenue New York, New York 10017-5644 RE: Revocation of NY N052662, dated March 3, 2009; Classification of a women’s upper-body garment Dear Ms. Lee: This letter is in response to your request for reconsideration of New York Ruling Letter (“NY”) N052662, issued to Marubeni America Corporation on March 3, 2009, concerning the tariff classification of a woman’s upper-body garment. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the merchandise under subheading 6206.30.3041 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), as a woman’s cotton blouse. We have reviewed NY N052662 and found it to be in error. For the reasons set forth below, we hereby revoke NY N052662. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published on May 11, 2011, in the Customs Bulletin, Volume 45, No. 20. No comments were received in response to this notice. FACTS: In NY N052662 we described the subject garment as follows: Submitted sample, style #17330, is a woman’s blouse constructed from 97% cotton and 3% spandex woven fabric. The blouse is collarless and features a round neckline, ¾ length sleeves, a full front opening secured by four buttons, two chest pockets with buttoned flaps and a hemmed bottom. This garment will be imported in misses’ sizes under style #17130 and in women’s size under style #17230. In addition to the above description, you also submitted a sample of this article to this office. After examining the sample, we note that the sample consists of at least three or more separate panels, that do not extend below the waist, and has white decorative stitching that encircles the collar. The back of the garment has darts sewn into it to help the garment contour to the wearer’s body. Shell buttons that are approximately ¾ of an inch in diameter provide the front closure for the garment. In addition, the sample is tapered just above the waist to maintain the shape of the wearer’s body. The bottom of the garment’s frontal opening is rounded. Finally, the sleeves have no button closures and are open. ISSUE: Whether the woman’s upper body garment is classified in heading 6206, HTSUS, as a woman’s blouse or in heading 6211, HTSUS, as an other garment? LAW AND ANALSYSIS: Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows: 6202 Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: 6206 Women’s or girls’ blouses, shirts and shirt-blouses 6211 Track suits, ski-suits and swimwear; other garments: The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The General EN for Chapter 62 provides: Shirts and shirt-blouses are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline. Blouses are also designed to cover the upper part of the body but may be sleeveless and without an opening at the neckline. The EN’s for heading 6202, HTSUS, provide that the EN’s to heading 6102, HTSUS, apply mutatis mutandis to heading 6202, HTSUS. The EN’s to heading 6102, HTSUS, then provide that the EN’s to heading 6101, HTSUS, apply mutatis mutandis to that heading. The EN’s for heading 6101, HTSUS, note that “[t]his heading covers a category of knitted or crocheted garments for men or boys, characterized by the fact that they are generally worn over all other clothing for protection against the weather.” Therefore, a garment of heading 6202, HTSUS, must be characterized by the fact that it is worn over all other clothing for protection against the weather. See Headquarters Ruling Letter (HQ) 964244, dated November 21, 2000. The EN to heading 6211, HTSUS, provides that the EN to heading 6114, HTSUS, applies, mutatis mutandis, to this heading. The EN for heading 6114, HTSUS, provides that the heading includes garments which are not included more specifically in the proceeding headings of this Chapter. Making the necessary changes to this EN so that it is applicable to heading 6211, HTSUS, we find that the EN’s for heading 6211, HTSUS, instruct us to rule out all other applicable headings of Chapter 62, HTSUS, before classification in heading 6211, HTSUS, is appropriate. In both your request for reconsideration and in your initial ruling request you asserted that the proper classification for this garment is in heading 6211, HTSUS. As noted above the EN’s to heading 6202, HTSUS, indicate that this heading is limited to garments that are designed to be worn over all other garments to protect the wearer against the weather. The subject garment is not designed to be worn over all other garments. It is tailored to provide a very contoured fit and the weight of the garment would be insufficient to protect the wearer from the weather. As a result, this garment cannot be classified in heading 6202, HTSUS. Turning to heading 6206, HTSUS, we note several definitions of the term “blouse”. The Fashion Dictionary, by Mary Brooks Picken, 1957, at 23, defines "blouse" as having a “loose waist or bodice of various types extending from neckline to waistline or below. Worn inside or outside separate skirt.” The Essential Terms of Fashion, by Charlotte Mankey Calasibetta, 1986, at 9, defines "blouse" as “clothing for the upper part of the body usually softer and less tailored than a shirt, worn with matching or contrasting skirt, pants, suit or jumper. Formerly called a waist.” See also HQ 959416, dated July 5, 1996. Therefore, a blouse should be designed to cover the upper part of the body, can be sleeveless with or without an opening at the neckline, and can be worn either with other outer garments such as a suit type jacket or other less formal jackets. In addition, a blouse with pockets below the waist or a ribbed waistband or other means of tightening at the bottom of the garment would be excluded from heading 6206, HTSUS, and classified in heading 6211, HTSUS. This particular garment covers the upper part of the body. It has sleeves and it does not have an opening at the neckline. However, the material of the garment does not have the soft hand typical of a shirt or blouse. In addition, heavy internal seams indicate that the garment would not be worn as a blouse due to the discomfort that these seams would cause from direct contact with the wearer’s skin. The garment also has large shell buttons which are not typical buttons for a blouse. The bottom rounded frontal opening of the garment also is not indicative of a typical blouse. Finally, we would also note marketing information that is found on your website for similar items that you are marketing as jackets. Thus, we agree with you that this particular garment would not be used as a blouse based on the garment’s design, manufacturing, marketing, and likely use. Since this garment is not described by any other heading in Chapter 62, HTSUS, it is classifiable in heading 6211, HTSUS. HOLDING: By application of GRI 1, the subject garment is classifiable in heading 6211, HTSUS, and in particular it is classified in subheading 6211.42.00, HTSUS, which provides for “[t]rack suits, ski-suits and swimwear; other garments: [o]ther garments, women’s or girls’: [o]f cotton”. The general column one duty rate is 8.1% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N052662, dated March 3, 2009, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division