Request for reconsideration of PC D80401: classification of garments for girls

HQ 962386 June 7, 1999 CLA-2 RR:TC:TE 962386 jb CATEGORY: Classification TARIFF NO.: 6204.42.3040; 6204.42.3060 Teresa M. Polino, Esq. Sandler, Travis & Rosenberg, P.A 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20004-3002 RE: Request for reconsideration of PC D80401: classification of garments for girls Dear Ms. Polino: This is in regard to your letter, dated November 24, 1998, on behalf of your client, Osh Kosh B’Gosh, requesting reconsideration of Preclassification Ruling Letter (PC) D80401, dated August 3, 1998, which addressed the classification of certain one piece garments for girls. Samples were submitted to this office and will be returned under separate cover. FACTS: The garments at issue are described by you as follows: Style G9593B is a girls’ size medium (8/10) sleeveless, A-Line jumper constructed of 100 percent cotton madras plaid seersucker fabric. The garment features a scooped neckline and is yoked at the top of the garment in the front and back with oversized armhole openings, patch pockets below the waist on the front of the jumper, and a 16 inch zipper back extending from the neck to the base of the spine area; Style G9335A is a girls’ size medium (8/10) floral print, 100 percent cotton seersucker jumper featuring a full frontal 8-button opening. The front of the garment is constructed with 4 full length panels, and the back of the jumper has 3 panels and two 1/2 inch wide X 10 inch long self-fabric ties to tighten the waist area. The garment is sleeveless with oversized armhole openings , a scooped neck and a “fit and flare” style; Style G9553A is a size three toddler pinafore-style sleeveless jumper constructed of a floral print 100 percent cotton seersucker fabric. The straight front and back bodice are lined with self fabric. The back has a three button opening with 11 inch long by 1-1/8 inch wide self-fabric ties attached to the top of the back bodice. The front has self-fabric loops at the top through which the back ties can be threaded.  Style G9327A, is a size 5 children’s sleeveless gingham/floral print 100 percent cotton seersucker jumper with an 8-button full frontal opening, a full skirt shirred to the bodice, two patch pockets below the waist, and a back waist band which has 1-3/4 inch wide elastic on both sides of the back. One and one half inch wide self-fabric ties are attached in the 2 inch deep side seams at the waist. The front and back bodice are cut down to the side seam ties in the front and back with the back of the bodice having a bib-like appearance. Thus, there are virtually no sides to the garment. The jumper has a scooped neckline and clean finished hem; Style G9333A, is a girl’s size medium (8/10) sleeveless, gingham/floral print, 100 percent cotton seersucker jumper with a 9-button full frontal opening, deep cut armhole openings, self-fabric ties at the side seams, a full skirt shirred to the bodice, a scooped neckline and patch pockets below the waist on each front panel. A small fabric label bearing the words “Genuine Girl” is attached 5/8 inch from the finished edge of the left pocket. It is your claim that Customs classification of these garments in heading 6204, HTSUS, which provides for among other things, girls’ dresses, is in error. In your opinion these garments are properly classified in heading 6211, in the provision for jumpers. You claim that the subject garments are classifiable as jumpers because they meet the criteria for such classification by definition, by design, by use, by marketing and by the precedent set in previous Customs rulings on identical or similar garments. ISSUE: What is the proper classification of the merchandise at issue? LAW AND ANALYSIS: Classification of merchandise 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 and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI. The competing classification provisions for the above referenced garments are headings 6204 or 6211, HTSUS. Heading 6204, HTSUS, provides for, among other things, women’s or girls’ dresses. Heading 6211, HTSUS, provides for, among other things, coveralls, jumpsuits, rompers, jumpers, and other garments. Jumper, is defined as follows: The Essential Terms of Fashion, by Charlotte Mankey Calasibetta (1986) at 92, states: 1. Women’s and children’s sleeveless garment, similar to a dress but usually beltless, worn over a sleeved blouse, sweater, or shirt. Also see DRESSES. 2. British term for pullover sweater. 3. British term for loose jacket-blouse worn to protect clothing. 4. Sailor’s overblouse or middy. The Fashion Dictionary, by Mary Brooks Picken (1973) at 210, states: Sleeveless, one-piece garment worn with guimpe. (“Guimpe”, at 170, is defined as a short blouse, often with sleeves. Usually worn with a pinafore type of dress.) In your submission you make reference to several Preclassification rulings which classified certain styles of girls’ garments as “jumpers”. In your opinion the garments which were the subject of those preclassification rulings are “virtually identical” to the garments at issue, and should therefore also be classified as jumpers. Upon review of those preclassification rulings we cannot say with any certainty that they are “virtually identical” to the garments at issue. Those rulings only offer a brief description of the garments and do not give a detailed analysis of the issues at hand. Specifically, with respect to the classification of “jumpers”, it has been Customs position that for a garment to be classified as a “jumper”, it must be that type of garment that cannot be worn alone and requires a blouse to be worn underneath. In reading the descriptions of the garments covered in the preclassification rulings you note in your submission, it is our understanding that those garments by virtue of features such as deep necklines, deep cut armholes, or otherwise, could not be worn alone, required the addition of an outerwear garment underneath and thus, were determined to be jumpers for classification purposes. In closely examining the submitted garments, we find that these garments are more akin to dresses which can and are, worn alone without another outerwear garment underneath. With respect to style G9327A, which you describe as “not having any sides”, and “not providing sufficient coverage for either warmth or modesty if worn without a blouse underneath”, we disagree with this statement. We find that the armhole openings are cut at a sufficient angle for purposes of modesty. Additionally, we note that the hang tag for this particular style indicates children’s size ranges from 4 to 6X/7. Any issues of “modesty” as pertains to this style are only relevant as pertains to the age of the wearer. In this case, any “modesty” standards would be satisfied for a five year old. A different situation would present itself however, were this style intended for a much older child or for that matter, adult. Furthermore, as these garments are intended for summer wear, we find that “warmth” is not an appropriately desired or relevant feature for these garments. Finally, you make reference to Mast Industries, Inc., v. United States, 9 CIT 549 (1985), aff’d 786 F.2d 1144 CAFC (1986), to support your claim that the manner in which garments are designed, marketed and sold is probative of the garments’ classification. In response to this statement we note that the court in Mast also indicated that the garment itself may be strong evidence of use. The factors mentioned in Mast are informative in those cases where the garment is considered a hybrid, that is, featuring characteristics of different types of garments. In such a borderline case, design, marketing and advertising may be insightful, although Customs has also recognized that this form of documentation may be self-serving and not convincing in a final determination. In the case of the subject merchandise, although this type of documentation was not provided, even had this been made available, it would not have changed the very nature of these garments as dresses. All of these garments may be worn comfortably alone and are best described as dresses. Accordingly, we affirm the classification in PC D80401 which held that these garments are dresses provided for in heading 6204, HTSUS. We would like to thank you for bringing to our attention PC B88043, dated July 29, 1997, which addressed the classification of at least three of the identical styles represented in this ruling letter (that is, G9335A, G9327A, and G9333A). As we have stated, pursuant to the analysis above, the correct classification for the subject merchandise is in the provision for dresses in heading 6204, HTSUS. As such, PC B88043 is superseded by this ruling letter. We advise you however, that the Pre-Entry Classification Program, which Customs initiated in January of 1989, was designed primarily to benefit importers whose product inventories lend themselves to an item-by-item review. Among the importers’ responsibilities for participation in the program include a complete product listing with proposed tariff classification where possible. Preclassification rulings constitute a contract between the Customs Service and then ruling recipient only with respect to the classification of the specific articles covered in the decision. Preclassification rulings are not full-text rulings issued under the authority of Part 177, Customs Regulations (19 CFR Part 177), and are not published or otherwise made available for public inspection. Accordingly, such rulings are not citable as authority in classifying merchandise of the same class or kind. For these reasons, Customs is not bound by PC B88043 with respect to the classification of the subject merchandise. Similarly, Customs may modify or revoke PC B88043 without benefit to the Company of a delayed effective date under section 177.9(d)(3), Customs Regulations. HOLDING: Referenced style number G9593B is classified in subheading 6204.42.3040, HTSUSA, which provides for, women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): dresses: of cotton: other: other: other: with two or more colors in the warp and/or filling: girls’. The applicable general column one rate of duty is 10.5 percent ad valorem and the quota category is 336. Referenced style numbers G9335A, G9327A, G9553A, and G9333A are classified in subheading 6204.42.3060, HTSUSA, which provides for, women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): dresses: of cotton: other: other: other: other: girls’. The applicable rate of duty is 10.5 percent ad valorem and the quota category is 336. 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 you check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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 the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division