CLA-2 RR:CR:GC 964433 mbg
Mr. Al Dwek
Telescope Structures, Inc.
109 Phillips Avenue
Deal, NJ 07723
RE: Classification of Jewish religious articles; Affirmation of NY F83944
Dear Mr. Dwek:
This is in response to your letter of June 6, 2000, in which you request reconsideration of New York Ruling Letter (“NY”) F83944, dated March 22, 2000, concerning the classification of Jewish prayer shawls under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). In preparing this response, consideration was also given to your subsequent submission of November 13, 2000, as well as the samples submitted to this office for review.
FACTS:
Two samples were submitted with your reconsideration request. NY F83944 concerned only one sample but HQ will address the classification of each of the samples submitted with this reconsideration request, the talit and arba kanfot, in both finished and unfinished form.
Sample 1 is a rectangular piece of cloth with a hole in the middle for placement of the article over one’s head. The article measures approximately 24 inches by 7.5 inches. The item is formally known as a “Arba Kanfot” but is more commonly referred to as “Tzizit” or a “Talit Katan”. The finished article has specially knotted tassels at each of the four corners.
Sample 2 is a rectangular piece of cloth with symbolic blue stripes woven into the cloth, specially knotted tassels at each of the four corners and fringe at both ends. There is a woven decorative strip of cloth measuring approximately 24 inches sewn onto the top of the sample. The item measures approximately 46 inches in length and 8 inches in width. The item is formally referred to as a “Talit”.
The specially knotted tassels which are attached to both of these samples are referred to as “Tzizit” or “Tzitzit” or “Tsitsith.” The tassels on the items have symbolic meaning in the Jewish religious faith and must be properly attached to the Arba Kanfot and the Talit in the required sequence and configuration to complete the article.
The woven articles are manufactured of either 65 percent/ 35 percent polyester–cotton blend; 100 percent cotton; or 100 percent wool fabric. You have stated that the articles will be imported without tassels (or fringe) but that tassels, and the fringe in the case of sample 2, will then be sewn on in the United States.
ISSUE:
Whether the subject merchandise is properly classifiable as a “clothing accessory” under heading 6217, HTSUSA; a woven shawl, scarf, or the like under heading 6214; a “festive article” in heading 9505, HTSUSA; or a prayer shawl under heading 9810, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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 (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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.
There are four competing headings under the HTSUSA which must be considered for classification of the merchandise under consideration: heading 6214 provides for woven shawls, scarves and the like; heading 6217 provides for other woven clothing accessories; heading 9505 provides for festive articles; and heading 9810 provides for prayer shawls.
Determination of the HTSUSA classification of the subject merchandise requires an understanding of terminology which is germane to the issue and
utilized by the HTSUSA.1 It is a well established tenet of customs law that tariff terms are construed in accordance with their common and commercial meanings and that the common meaning of a tariff term is a question of law. Toyota Motor Sales, U.S.A., Inc. v. United States, 7 Ct Int’l Trade 178, 182, 585 F.Supp 649 (1984), aff’d 753 F.2d 1061 (Fed.Cir. 1985). Thus, it is proper for Customs to turn to lexicographic sources to determine the meanings of the terms at issue. Once having determined the meaning of the terms, in deciding if the subject articles are within the eo nomine classification of the HTS, Customs may consider the use of the merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73, C.A.D. 699 (1959). Customs interprets the use of the merchandise to include the manner in which it is worn as well as the reason for which it is worn. We note the following definitions:
Prayer Shawl- A tallith. Webster’s II, New College Dictionary 868 (1995).
Tallith – A fringed prayer shawl with bands of black or blue, worn during worship by Orthodox or Conservative Jews. Id. at 1125.
Tallit- Prayer Shawl, usually of silk or wool, sometimes banded with silver or gold thread, and fringe at each of the four corners in accordance with biblical law. (Num. 15:38) The wearing of the tallit at worship is obligatory only for married men, but it is customarily worn also by males of bar mitzvah age or older. Occasionally it is spread over the marriage canopy or used as a burial shroud. In recent years, some women have begun to wear tallits. Mordecai Schreiber, The Shengold Jewish Encyclopedia, 255 (1998).
Arba Kanfot- Literally, four corners. A rectangular vestlet covering the chest and back, with ritual fringes, or tzizit, attached to its corners, in remembrance of the biblical command that Jewish males wear a fringed garment (Num. 15:37-41). It is also called a tallit katan, or little tallit. Id. at 28.
Tzitzit- Tassels hanging on each of the four corners [of a Tallit or Tallit Katan]. If you look carefully you will see that they are made of eight strings, or more accurately, four strings doubled over to make eight. You will also notice that they are attached through a small hole near the corner and that they contain five knots and four groups of windings between the knots. Aryeh Kaplan, Tzitzith: A Thread of Light, 9 (1984).
Furthermore, after consultation with various sources concerning the practice of the Jewish faith, Customs notes the following explanation of the usage for the subject merchandise:
When dressing one should add to his garments the Talit Qatan (little talit), better known as ‘Arba’ Kanfot (four corners), which should be worn all day. The Talit Qatan consists of an oblong piece of cloth with a hole cut in the middle large enough for the head to go through. It should be large enough to fold over the upper body in front and back, and should have Tsitsit on its four corners. . . . The Tsisit, as the Torah prescribes, serve as a reminder of God’s commandments: “And ye shall look at it and remember all the commandments of the Lord.” (Num. 15:39). . . . If one of the threads is missing the Talit should not be used. . . . Today, the Tsitsit come ready made, attached properly to the Talit and Talit Qatan.
See Isaac Klein, A Guide to Jewish Religious Practice, 3-5 (1979).
Classification within a Textile Provision of heading 6214 or 6217
In New York Ruling Letter (“NY”) F83944, dated March 22, 2000, and issued to your company, Customs classified the subject merchandise in heading 6217, HTSUSA, which provides for other made up woven clothing accessories. Upon review, Customs affirms NY F83944, in regards to sample 1, i.e. the arba kanfot without tassels for the reasons set forth below. Customs also finds that subheading 9810. 01.9000, HTSUSA is applicable under circumstances set forth infra. Customs addresses classification of the sample 2, the talit without tassels or fringe, below.
The analysis utilized in NY F83944 relied partially upon prior Headquarters Ruling Letter (‘HQ”) 950037, dated October 29,1991, in which prayer shawls in the form of upper body garments but with open sides closed with one snap under the armholes and without tzizit (tassels) were classified as knit “other garments” in heading 6114, HTSUSA. The instant garments are different in shape.
The ENs to heading 6214 provides:
This heading includes. . . . Scarves and mufflers. These are usually square or rectangular and are normally worn round the neck. . . . The edges of these articles are usually hemmed, rolled, bordered or fringed.
Although called a “prayer shawl”, the subject merchandise does not resemble a “shawl” in appearance. Sample 2 (talit) is a rectangular piece of cloth with fringes on the end and specially tied tassels in the corners. The submitted sample resembles a scarf in appearance in the width and length of the fabric and shape. Furthermore, the talit is worn in a similar manner to a scarf (i.e., worn hanging straight down from the neck) even though for religious observance. As the HTS provides eo nomine for scarves and shawls at the heading level, Customs believes that a talit is properly classified in heading 6214, HTSUSA.
Sample 1 (Arba Kanfot) also has a rectangular shape and tassels but in addition is shorter in length and has a hole in the middle so that it can be placed over one’s head. The arba kanfot is not worn like a scarf but instead is worn under other garments. The submitted arba kanfot sample has the appearance of a clothing accessory because it is a complete article and covers the shoulders with tassels draping on each side of both arms (similar to where arm holes on a shirt would be). However, the article is not similar in appearance to the named items in the text of heading 6214.
Customs believes that the arba kanfot is properly classified in heading 6217, HTSUSA, as an other woven clothing accessory based upon the chief weight of the fabric and the talit is properly classified in heading 6214, HTSUSA, as a woven shawl, scarf or the like based upon the chief weight of the fabric.
Classification in heading 9505 as a Festive Article
Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS. The EN to heading 9505 states, in part, that the heading covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:
(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.
The EN to heading 9505, HTSUS, also state that, among other articles, the heading excludes Christmas candles and Christmas tree candles (heading 3406), and textile flags or bunting (heading 6307).
In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:
1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and
3. Is associated with or used on a particular holiday.
An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.
Based upon a review of the articles subject to Midwest, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” in pertinent part, utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See U.S. Customs Service, What Every Member of the Trade Community Should Know About: Classification of Festive Articles (32 Cust. B. & Dec. 2/3, 177, January 21, 1998).
In considering the Midwest standards, we note that the prayer shawls are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. However, at issue here is whether the subject prayer shawls correspond to articles used in celebration of a particular Jewish holiday. As cited in various sources infra, these prayer shawls are used in religious services on the Sabbath and certain holy days, however, neither is primarily used for “a particular” festive occasion as required under the Midwest standards.
Classification as a Prayer Shawl in heading 9810, HTSUSA
Subheading 9810.00.90, HTSUSA, provides eo nomine for prayer shawls. In NY F83944, Customs did not consider heading 9810 for the classification of the subject merchandise due to its interpretation of U.S. Note 1 to Subchapter X, Chapter 98, HTSUSA, which provides:
Except as provided in subheading 9810.00.20 and headings 9810.00.70, 9810.00.85, 9810.00.90 and 9810.00.95, or as otherwise provided for in this U.S. note, the articles covered by this subchapter must be exclusively for the use of the institutions involved, and not for distribution, sale or other commercial use within 5 years after being entered. . . .
While this note was considered in the NY ruling letter issued to your company, the sample merchandise presented by your company did not contain the specially knotted tassels. The NY ruling concluded that the subject merchandise was not a prayer shawl, not exempt from the requirement in U.S. Note 1 to Subchapter X, Chapter 98 of exclusive use by religious or other institutions, and not classifiable in any other Subchapter X provision. However, upon review of the subject merchandise which has the special tassels properly attached, Customs has determined that the subject merchandise does qualify as a religious article and that U.S. Note to Subchapter X, Chapter 98 is applicable to the finished prayer shawls.
Furthermore, U.S. Note 1 to Subchapter X, HTSUSA, specifically excludes from its coverage prayer shawls listed in subheading 9810.00.90, HTSUSA, and therefore the items need not be exclusively for the use of religious or other institutions. Customs affirms NY F83944 regarding unfinished prayer shawls which do not have the special tassels attached and therefore are not classifiable in heading 9810 or any other provision in Subchapter X. Customs believes that classification within subheading 9810.00.90, HTSUSA, is appropriate for the subject merchandise provided that the talit and arba kanfot are imported in a condition in which they may be used for public or private religious observances. As stated in the above cited sources, both the talit and arba kanfot are symbolically used for prayer and have specially knotted tassels and fringe attached for their use and purpose as such. Therefore, if the subject merchandise is imported with the tassels attached then the importer of record may claim duty free status as a religious article under subheading 9810.00.90, HTSUSA.
HOLDING:
NY F83944, dated March 22, 2000, is affirmed.
Sample 1-
The applicable subheading for the “Arba Kanfot” composed of woven 65 percent polyester/ 35 percent cotton fabric will be 6217.10.9530, HTSUSA, which provides for “Other made up clothing accessories; Parts of garments or clothing accessories, other than those of heading 6212: Accessories: Other: Other: Of man-made fibers.” The general column one rate of duty is 14.9 percent ad valorem. The designated textile category number is 659.
The applicable subheading for the “Arba Kanfot” composed of 100 percent cotton fabric will be 6217.10.9510, HTSUSA, which provides for “Other made up clothing accessories; Parts of garments or clothing accessories, other than those of heading 6212: Accessories: Other: Other: Of cotton.” The general column one rate of duty is 14.9 percent ad valorem. The designated textile category number is 359.
The applicable subheading for the “Arba Kanfot” composed of woven 100 percent wool fabric will be 6217.10.9520, HTSUSA, which provides for “Other made up clothing accessories; Parts of garments or clothing accessories, other than those of heading 6212: Accessories: Other: Other: Of wool or fine animal hair.” The general column one rate of duty is 14.9 percent ad valorem. The designated textile category number is 459.
Sample 2-
The applicable subheading for the “Talit” composed of woven 65 percent polyester/ 35 percent cotton fabric will be 6214.30.0000, HTSUSA, which provides for “Shawls, scarves, mufflers, mantilla, veils and the like: Of synthetic fibers.” The general column one rate of duty is 5.3 percent ad valorem. The designated textile category number is 659.
The applicable subheading for the “Talit“ composed of woven 100 percent cotton will be 6214.90.0010, HTSUSA, which provides for “Shawls, scarves, mufflers, mantilla, veils, and the like: Of other textile materials: Of cotton.” The general column one rate of duty is 11.3 percent ad valorem. The designated textile category number is 359.
The applicable subheading for the “Talit “ composed of woven 100 percent wool will be 6214.20.0000, HTSUSA, which provides for “Shawls, scarves, mufflers, mantilla, veils, and the like: Of other textile materials: Of wool or fine animal hair.” The general column one rate of duty is 6.7 percent ad valorem. The designated textile category number is 459.
However, if imported with the specially knotted tassels and fringe properly attached, sample 1 and sample 2 are eligible for duty-free treatment under subheading 9810.00.9000, HTSUSA, the provision for “Prayer shawls, bags for the keeping of prayer shawls and headwear of a kind used for public or private religious observances, whether or not any of the foregoing is imported for the use of a religious institution.” The general column one rate of duty is free. The appropriate ten-digit classification given in previous paragraphs of this holding must be stated as well, for statistical purposes. Currently no visa or quota restrictions are applicable.
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 (Restraint Levels), an internal issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.
Due to the changeable nature of the statistical annotation (ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division