CLA-2:OT:RR:CTF:TCM H103966 HvB
Tariff No.: 6102.30.2010
Port Director
Port of Seattle
1000 Second Ave., Suite 2100 Seattle, WA 98104 Attn: Angela Hutz
RE: Application for further review of protest number 3001-10-100017; Classification of a woman’s knit wrap
Dear Port Director:
This letter is our decision on protest and Application for Further Review (AFR) number 3001-10-100017, filed on behalf of Lerner New York, Inc. (Protestant). The protest is against U.S. Customs and Border Protection’s (CBP) classification of a woman’s knit wrap from the People’s Republic of China, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The submitted sample, style number 8228938, is a woman’s one-size fits all knit outer garment constructed of 100% acrylic bulky knit fabric. The sample which you retained is worn over the shoulders and arms, extends past the waist and, has a “New York & Company” tag. The basic shape is rectangular with a slit, which measures 27 inches from one edge to the center of the item. The garment is sleeveless and measures approximately 59 ½ inches in length and 48 inches in width. There is a decorative 4 inch fringe at each of the ends. When worn, the article covers the arms and reaches below the wearer’s waist at an angle to the thigh area in the front, to the knee area in the rear, and to the wrist area at the sides. The article has no collar or means of closure. A picture of the subject merchandise is below.
The underlying entry for the protest was liquidated on September 25, 2009. Protest was filed on March 2, 2010.
ISSUE:
Whether the subject merchandise is properly classified as a cape or similar article under heading 6102, HTSUS, or as a knitted accessory under heading 6117, HTSUS.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable as a classification decision pursuant to 19 U.S.C. §1514(a)(2). The protest was timely filed on March 2, 2010, within 180 days of the liquidation of the entry giving rise to the protest. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B)(i),(iii) (codified as amended at 19 U.S.C. §1514(c)(3) (2006)).
Further review of Protest 3001-10-100017 was properly accorded because the port’s decision is alleged to be inconsistent with decisions made by another port on the same or substantially similar merchandise. See 19 C.F.R. §174.24(a). In addition, the protestant cites New York Ruling Letter (NY) N038555, dated October 8, 2008, which classified a women’s knit wrap under heading 6117, HTSUS.
All merchandise imported into the United States is classified in accordance with the HTSUS. 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 2008 HTSUS provisions under consideration are:
6102 Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski jackets), windbreakers and similar articles, knitted or crocheted, other than those of 6104:
* * *
Of man-made fabrics
* * *
Other:
* * *
6102.30.20 Other…
6102.30.2010 Women’s
6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories:
6117.10 Shawls, scarves, mufflers, mantillas, veils and the like:
* * *
6117.10.20 Of man-made fibers…
* * *
6117.10.2030 Other:
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or 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, 54 Fed. Reg. 35127 (August 23, 1989). EN 61.02 provides that “The provisions of the Explanatory Note to heading 61.01 apply, mutatis mutandis to the articles of this heading”. The EN to heading 6101 provides, in relevant part, as follows:
This heading covers a category of knitted or crocheted garments for men
or boys, characterised by the fact that they are generally worn over all
other clothing for protection against the weather.
It includes:
Overcoats, raincoats, car-coats, capes including ponchos, cloaks, …
* * *
In addition, the CBP Informed Compliance Publication (“ICP”) provides basic definitions of apparel terms that are commonly used in the HTSUS and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. See CBP Informed Compliance Publication on “Classification: Apparel Terminology under the HTSUS,” June 2008. The Informed Compliance publication describes “Overcoats, carcoats, capes, cloaks and similar garments (6101,6102, 6201, 6202)” as follows:
… a group of outerwear garments which cover both the upper
and lower parts of the body, and which are normally worn over
other garments for warmth and protection from the weather.
Overcoats and carcoats are thigh length or longer, with sleeves,
with or without a means of closure, and with a full-front opening.
This group also includes capes, which are sleeveless outerwear
garments worn for warmth and protection from the weather. They
generally have front and back coverage that extends to the waist or
below, and side coverage that extends to the elbow or below. Capes
hang loosely from the shoulders, usually have slits for arms and cover
the back, shoulders and arms, and may or may not have a full-front opening. This group excludes capelets of heading 6117, whose front and back coverage falls above the waist, or whose side coverage does not extend to the elbow.”
At issue is whether the instant item is a shawl or a cape or an article similar to a cape. When a tariff term is not clearly defined by either the HTSUS or its legislative history, the meaning of the term is generally resolved by ascertaining its common and commercial meaning. See, e.g., W.Y. Moberly, Inc. v. United States, 924 F.2d 232, 235 (Fed. Cir. 1991). In ascertaining common meaning, the court may rely on its own understanding of the term used, and may consult dictionaries, scientific authorities, and other reliable sources of information. See, e.g., Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988). A Dictionary of Costume and Fashion (Mary Brooks Pickens, 1957) defines a wrap as “loose outer garment; originally one intended to be folded about the person. (Plural) Outer garments in general, worn in addition to regular clothing.” A cape is defined as a “sleeveless outer garment of any length hanging loosely from shoulders; usually covering back, shoulders, arms.” A shawl is defined as as a “straight, square, oblong, or triangular piece of material, worn across the shoulders.”
Applying these criteria to the present case, we find that the instant garment is similar in style to articles known as ruanas. The American Heritage Dictionary of the English Language, Fourth Edition defines a ruana as “a poncholike garment, open in front, often worn like a wrap.” The two main factors guiding our classification are the slit, which allow the wearer to wear the article covering the shoulders, and the length of the item. In CBP’s purview, the length of a garment can be a determining factor when classifying a garment. See HQ 967889 (February 1, 2006). Both features augment the item with versatility. When worn over the shoulders and torso, the item provides coverage past the waist to the thigh area in the front, past the knee area in the rear, and to the wrist area at both sides. It is similar to a cape and thus classifiable in heading heading 6102, HTSUS. Heading 6102 is an eo nomine provision; accordingly, the instant garment is classifiable under heading 6102, HTSUS.
We have consistently classified substantially similar garments under heading 6202, HTSUS. In NY N004822, dated January 12, 2007, we classified a rectangular woven women’s garment, measuring 65 inches in length plus fringe and 48 inches in width, as a ruana under heading 6202, HTSUS. Like the garment in question, that article had a slit in the center, and was capable of being worn with one or both ends looped back over the shoulders, or hanging. Both garments also cover the entire torso and extend below the elbow. In NY N052261, dated March 16, 2009, we classified a “ruana-style cape” under heading 6102, HTSUS. That item was 63 inches in length and 51 inches in width plus fringe and had a 29 ½ inch slit in the center. The item in question is similarly proportioned, at 59 ½ inches in length and 48 inches in width, with a 27 inch slit. Both articles feature a full front opening with no means of closure, and provide coverage to below the knees in the front and the upper thigh in the back. See also NY N052757 (March 13, 2009), NY N067841 (July 17, 2009), and NY N079147 (October 22, 2009). In NY I83903, dated July 31, 2002, we classified a rectangular woven silk garment 56 inches in length and 36 inches in width with a slit extending 29 inches under heading 6202, HTSUS, noting that the U-shaped cut-out allows the garment to be draped over the shoulders and around the neck, forming two front panels with a full front opening. That article is also substantially similar to the article at issue. See also NY N022430 (February 19, 2008) and NY 875073 (June 24, 1992).
The protestant submits that the item in question is similar to the item classified in NY N038555 (dated October 7, 2008), in which we classified a wrap under heading 6117, HTSUS. In that ruling, we found that a garment measuring 68 inches in length and 22 inches in width was a shawl, classifiable under subheading 6117.10, HTSUS. Unlike the instant item, it did not reach the waist and, in fact, left a significant portion of the abdomen and lower back exposed. It was also designed to be worn gathered around the shoulders, unlike the instant item which provides coverage of the wearer’s torso and wearer’s arms. That ruling is further distinguishable because the article covered by NY N038555 lacks a slit extending from the center of the garment. Furthermore, the article at issue does not meet the terms of a shawl, as defined in past CBP precedent and in the A Dictionary of Costume and Fashion (supra), which defines a shawl as a “straight, square, oblong, or triangular piece of material, worn across the shoulders”. See, e.g., HQ 964225. Shawls are typically designed to cover the wearer’s shoulders and do not extend beyond the upper body. The instant garment is therefore not a shawl because it reaches beyond the wearer’s waist and is therefore not classifiable in heading 6117. Furthermore, we have distinguished shawls that resemble ponchos on the basis of length and amount of protection that the item provides from the weather. See, e.g., HQ 963859, dated June 9, 2000, and HQ 964321, dated July 7, 2000.
HOLDING:
Pursuant to GRI 1, the subject merchandise is correctly classified in subheading 6102.30.2010, HTSUS, 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 man-made fibers: other: other: women’s.” The 2008 general column one rate of duty at the time of entry was 28.2 percent ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division