OT:RR:CTF:FTM HQ H326665 MJD
Center Director
Apparel, Footwear and Textiles Center
U.S. Customs and Border Protection
555 Battery St., 4th Floor
San Francisco, CA 94111
Attn: Phaedra Murphy, Import Specialist
Re: Application for Further Review of Protest No. 2704-20-137627; Tariff Classification of Men’s and Boys’ Knitted Pullovers
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-20-137627, timely filed on July 21, 2020, by WD Invest Company Limited (hereinafter “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of men’s and boys’ knitted pullovers under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue are men’s and boys’ long-sleeved, round neck pullovers. They were entered on January 15, 2019, under subheading 6110.90.9080, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of other textile materials: Other: Other: Subject to man-made fiber restraints: Men’s or boys’: Other” at a rate of duty of 6%. On January 23, 2020, CBP issued a Notice of Action (“CB Form 29”) advising Protestant that the subject entry would be rate advanced and the correct classification of the merchandise is subheading 6110.30.3053, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Other: Men’s or boys’: Other” at a rate of duty of 32%.
Protestant argues that the pullovers are knitted from metalized yarn, and because metalized yarn is considered to be an “other” textile material rather than man-made (artificial or synthetic) fiber, for tariff purposes, the pullovers should be classified in subheading 6110.90, HSTUS, as a garment made “of other textile material,” and not classified in subheading 6110.30, HTSUS, as a garment made “of man-made fibers.”
Protestant provides independent laboratory test results from Intertek Testing Services Ltd., (“Intertek”) regarding the fiber analysis of a sample pullover. Based on the findings of the laboratory test, Protestant confirms that the fibers in the yarn contain metalized strips. The results of Intertek’s laboratory test are as follows:
Laboratory report no. HGHT06560731, dated July 9, 2020
1 Fiber Analysis:
AATCC 20-2018/20A-2018
Based On Moisture Regain Weight
88.3% Polyester
8.1% Cotton
3.6% Metallic *(3.1% Polyester + 0.5% Metallic Component)
Remark: * Metallic Was Found To Be Composed Of 86.5% Polyester And 13.5% Metallic Component. Moisture regain of Polyester 0.4%, Cotton 8.0% & Metallic 0.0%.
(Based on ASTM D1909-2013)
CBP sent two garments covered by the subject entry to the CBP laboratories in Los Angeles and New York which were received by the laboratories on December 11, 2020, and December 28, 2020, respectively. There the garments were tested to determine whether they were constructed from yarn considered to be “metalized” for HTSUS purposes. The CBP laboratory results of the samples are as follows:
CBP Laboratory Report no. LA20202864, dated June 21, 2021
The sample is a heather gray Men’s pullover. It is labeled as “Captivating Apparel, Size: M, RN # 101475, 88% Polyester, 9% Cotton, 3% Metallic.”
The sample is knitted and composed of three yarns. There are (2) 1-ply yarns and (1) 2-ply yarn. The 1 and 2-ply yarns are not twisted, gimped or cabled together. There is a 1-ply yarn composed of polyester and a 1-ply blended yarn composed of cotton and polyester. The 2-ply yarn is composed of 1-ply of polyester yarn and 1-ply of metalized yarn twisted together. The metalized yarns are less than 5 mm in width.
The ply content of the sample by weight is as follows:
Percent:
1-ply (polyester yarns, polyester/cotton blended yarns) 90
2-ply (polyester/metalized yarns) 10
The overall fiber content of the sample by weight is as follows:
Percent:
Polyester (man-made) 87
Cotton (natural) 10
Metalized yarn (man-made) 3
The sample has a stitch count of 10 or more stitches per cm in both.
CBP Laboratory Report no. NY20210013, dated February 24, 2021
The sample is a man’s knitted pullover marked TOP OF THE WORLD SIZE M (sewn label).
The sample, a weft knit, is constructed of three different yarns that are not twisted together: (1) one 1-ply polyester/cotton blended staple yarn (48.3 % by weight), (2) one 1-ply polyester staple yarn (41.5 % by weight, and (3) 2-ply metalized yarn (10.2 % by weight).
(1) The polyester/cotton blended yarn is composed of 81.2 % polyester staple fibers and 18.8 % cotton fibers by weight.
(2) The 1-ply yarn is wholly of polyester staple fibers.
(3) The 2-ply metalized yarn is composed of a polyester multifilament yarn (65.5 % by weight) that is twisted to a metalized strip (34.5 % by weight) with an apparent width of less than 5 millimeter.
The overall fiber content by weight of the sample is:
Percent:
Polyester 87.4
Cotton 9.1
Metallic 3.5
METHODS USED: AATCC 20, AATCC 20a, CBPL 35-07, CBPL 28-20.
ISSUE:
What is the tariff classification of the men’s and boys’ knitted pullovers?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2704-20-137627 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest was filed is inconsistent with Headquarters Ruling Letter (“HQ”) H202560, dated September 17, 2013, and Lockhart Textiles Inc. v. United States, No. 17-00099, 2020 Ct. Intl. Trade LEXIS 77, at *10-11 (Ct. Int’l Trade May 29, 2020).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined 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 2019 HTSUS provisions under consideration are as follows:
6110: Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or
crocheted:
6110.30: Of man-made fibers:
Other:
Other:
6110.30.30: Other…
6110.90 Of other textile materials:
6110.90.90: Other….
* * *
Note 2 to Section XI, HTSUS, provides, in pertinent part, as follows:
Goods classifiable in Chapters 50 to 55 or in heading 5809 or 5902 and of a mixture or two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
[…]
(B) For the purposes of the above rule:
Gimped horsehair yarn (heading 5110) and metalized yarn (heading 5605) are to be treated as a single textile material the weight of which is to be taken as the aggregate of the weights of its components; for the classification of woven fabrics, metal thread is to be regarded as a textile material;
* * *
Subheading Note 2(A) to Section XI, HTSUS, provides, in pertinent part, as follows:
Products of Chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials.
* * *
When interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System 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 ENs to heading 5605, HTSUS, provide, in pertinent part, the following:
56.05 - Metallised yarn, whether or not gimped, being textile yarn, or strip or the like of heading 54.04 or 54.05, combined with metal in the form of thread, strip or powder or covered with metal.
This heading covers:
Yarn consisting of any textile material (including monofilament, strip and the like and paper yarn) combined with metal thread or strip, whether obtained by a process of twisting, cabling or by gimping, whatever the proportion of the metal present. The gimped yarns are obtained by wrapping metal thread or strip spirally round the textile core which does not twist with the metal. Precious metals or plated metals are frequently used.
Yarn of any textile material (including monofilament, strip and the like, and paper yarn) covered with metal by any other process. This category includes yarn covered with metal by electro-deposition, or by giving it a coating of adhesive (e.g., gelatin) and then sprinkling it with metal powder (e.g., aluminium or bronze).
* * *
We first note that there is no disagreement that the pullovers are classified under heading 6110, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” The issue here is at the six-digit level of classification, and concerns whether the pullovers are classified in subheading 6110.30, HTSUS, as pullovers made “of man-made fibers,” or in subheading 6110.90, HTSUS, as pullovers made “of other textile materials.”
Protestant provides that the pullovers are classified in subheading 6110.90, HTSUS, as pullovers made “of other textile materials” because the pullovers are made with metalized yarns which are classified in heading 5605, HTSUS. In support of their argument, Protestant cites to HQ H202560, where CBP stated that “metalized yarn’ as commonly and commercially understood, is a manufactured fiber composed of metal, plastic-coated metal, metal-coated plastic, or a core completely covered by metal, including metal sandwiched between layers of plastic, as in Lurex yarns, having a visible metallic effect or appearance.” Protestant further provides that the textile industry defines metalized yarn as “either a textile yarn covered or coated with metal, or a plastic film deposited with metal and slit into yarn” which is consistent with the products CBP has classified in heading 5605, HTSUS, and the ENs to heading 5605, HTSUS.
Protestant also cites to Lockhart Textiles Inc. v. United States, which discussed the two following requirements of heading 5605, HTSUS: that “a product must be (i) a ‘textile yarn, or strip or the like of heading 5404 or 5405,’ which is (ii) ‘combined with metal in the form of thread, strip or powder or covered with metal.” Protestant claims that the pullovers meet both requirements because they “contain yarns consisting of fibers coated/covered in metal and have a metallic character or appearance.” Moreover, Protestant claims the manufacturing process of the metalized yarn by Shaoxing Zheyan Textile Co., Ltd., located in China that involves twisting metalized strips with polyester and polyester cotton fibers to make the metalized yarn, is consistent with the ENs to heading 5605, HTSUS.
Protestant further asserts that “A yarn that contains any amount of metal, no matter how small that amount, is regarded in its entirety as ‘metalized yarn.” As a result, Protestant further states “Because the yarn used in the Pullover contains fibers completely coated in aluminum and spun with other fibers, the entire yarn is considered metalized, and its entire weight is counted as ‘other’ textile material when making the ‘chief weight’ determination.”
As mentioned above, metalized yarn in classified in heading 5605, HTSUS. The HTSUS does not define metalized yarns, but according to the ENs to heading 5605, HTSUS, yarns of any textile material that are combined with metal thread or strip through the process of twisting, cabling or by gimping, or covered with metal by any process, is considered a metalized yarn no matter the portion of metal present. See ENs to heading 56.05.
According to CBP laboratory report no. LA20202864 and laboratory report no. NY20210013, each pullover contains three different yarns which are not twisted together. Specifically, CBP laboratory report no. LA20202864, stated that the sample pullover was made of a 1-ply yarn composed of polyester, a 1-ply blended yarn composed of cotton and polyester, and a 2-ply yarn composed of 1-ply of polyester yarn and 1-ply of metalized yarn twisted together. The 1-ply polyester yarns, and 1-ply polyester/cotton blended yarns account for 90% of the ply content of the pullover by weight, and the 2-ply polyester/metalized yarns account for 10% of the ply content of the pullover by weight. Moreover, the polyester fibers and cotton fibers in the pullover amount to 87% and 10% of the overall fiber content of the pullover by weight, respectively, and the metalized yarn accounts for 3% of the overall fiber content of the pullover by weight.
Similarly, CBP laboratory report no. NY20210013, stated that the sample pullover was made of a 1-ply polyester/cotton blended staple yarn, a 1-ply polyester staple yarn, and a 2-ply metalized yarn that is composed of a polyester multifilament yarn that is twisted to a metalized strip. The 1-ply polyester/cotton blended staple yarn accounts for 48.3 % of the overall weight of the pullover, the 1-ply polyester staple yarn accounts for 41.5 % of the overall weight of the pullover, and the 2-ply metalized yarn accounts for 10.2 % of the overall weight of the pullover. Moreover, the polyester fibers and cotton fibers in the pullover amount to 87.4% and 9.1% of the overall fiber content of the pullover, respectively, and the metalized yarn accounts for 3.5% of the overall fiber content of the pullover.
Thus, since each pullover contains a 2-ply yarn composed of a polyester yarn twisted to metal, this yarn is considered a metalized yarn according to the ENs to heading 5605, HTSUS, because the textile material, in this case polyester, is twisted with metal strips making the entire yarn metalized. Therefore, we agree with Protestant that the pullovers contain metalized yarns. However, we note that based off the CBP laboratory reports, the pullovers also contain other yarns, specifically the 1-ply polyester yarn and the 1-ply polyester/cotton blend yarn, that are not combined or covered in any way with the metal strips. Thus, according to the ENs to heading 5605, HTSUS, the 1-ply polyester yarn and 1-ply polyester/cotton blend yarn are not considered metalized yarn. Therefore, the pullovers cannot be said to be constructed of metalized yarn in their entirety and we must consider other yarns for tariff classification purposes.
Specifically, Subheading note 2(A) to Section XI, HTSUS, provides in part, the following:
Products of Chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under Note 2 to this section for the classification of a product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials.
Since the pullovers at issue are classified in Chapter 61, HTSUS, and contain two or more textile materials as discussed above, Subheading note 2(A) to Section XI, HTSUS, is applicable. Subheading note 2(A) to Section XI, HTSUS, directs attention to Note 2 to Section XI, HTSUS. Note 2(A) to Section XI, HTSUS provides that “Goods classifiable in Chapters 50 to 55 or in heading 5809 or 5902 and of a mixture or two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.” Pertaining to metalized yarns, Note 2(B)(a) to Section XI, HTSUS, provides that “. . . metalized yarn (heading 5605) are to be treated as a single textile material the weight of which is to be taken as the aggregate of the weights of its components.”
In the instant case, the textile material which predominates in weight is the polyester found in the pullovers. Specifically, CBP laboratory report no. LA20202864, stated that the ply content of the 1-ply polyester yarns and 1-ply polyester/cotton blended yarns accounted for 90% of the weight of the sample pullover, while the ply content of the 2-ply metalized yarns accounted for only 10% of the weight of the sample pullover. Furthermore, polyester accounts for 87% of the overall fiber content of the pullover by weight, with cotton being 10% and metalized yarn being 3%. Likewise, the CBP laboratory report no. NY20210013, stated that the 1-ply polyester/cotton blended staple yarn accounted for 48.3% by weight of the sample pullover, while the 1-ply polyester staple yarn accounts for 41.5% and the 2-ply metalized yarn accounts for 10.2%. Furthermore, polyester accounts for 87.4% of the overall fiber content of the pullover by weight, with cotton being 9.1% and metallic being 3.5%. Accordingly, since the 1-ply polyester is not twisted with the metal strips in the pullover and as a result is not considered a metalized yarn, and the polyester, a man-made fiber, predominates in weight over the other fibers, the pullovers are classified in subheading 6110.30, HTSUS, which provides for pullovers that are “of man-made fibers.”
CBP has previously considered the classification of pullovers made with metalized yarns. For example, in New York Ruling Letter (“NY”) N293447, dated May 8, 2018, CBP classified a women’s pullover sweater, style FW18-K15, composed of a 2-ply cotton/acrylic blend staple yarn (57.7% by weight), a chain stitch metallic yarn (38.8% by weight) composed of a 1-ply polyester yarn (67.3% by weight) twisted together with a 1-ply metallic yarn (32.7% by weight), and a 2-ply metallic yarn (3.5% by weight) that is composed of a 1-ply rayon yarn (63.9% by weight) twisted together with a 1-ply metallic yarn (36.1% by weight) in subheading 6110.30, HTSUS. The three yarns were not twisted together. The overall composition of the pullover by weight was 34.1% cotton, 26.1% polyester, 23.6% acrylic, 14.0% metallic and 2.2% rayon. As the metallic component was not covered or combined in any way with the other yarns and the man-made fibers predominated in weight, CBP classified the pullover in subheading 6110.30, HTSUS. Similarly, in NY N304671, dated October 16, 2019, CBP classified a women’s sweater, style CW7935, constructed from 75.7% rayon, 15.6% polyester, and 8.7% metalized yarn that was not twisted in subheading 6110.30, HTSUS. Like the sweaters in NY N293447 and NY N304671, the man-made fibers of the pullovers at issue here that are not combined in any way through twisting, gimping, or cabling with the metalized part of the garment, or covered in any way with the metalized part of the garment, make up the chief weight of the garments, and as a result are classified at the six-digit level by such man-made fibers at subheading 6110.30, HTSUS.
Conversely, in NY N018349, dated November 2, 2007, CBP classified a women’s cardigan with a fiber content of 82% cotton and 18% stainless steel metallic in subheading 6110.90, HTSUS. In that case, the fabric was knitted from “a single twisted three-ply yarn which conatin[ed] two plys of cotton and one ply of metallic stainless steel.” (emphasis added). As the fabric was constructed from a single twisted three-ply yarn made of cotton and metallic stainless steel, CBP stated that “[i]n accordance with Section XI note 2, yarns containing mentalized fibers are treated as a single textile material” and thus CBP classified the cardigan in subheading 6110.90, HTSUS, as a pullover made of “other fibers.” Thus, unlike the cardigan in NY N018349 where the three ply-yarns are twisted together with metallic stainless steel making the entire yarn metalized, the yarns of the pullovers at issue here are three distinct yarns that are not twisted together, with the non-metalized yarns, in this case polyester, predominating in weight. As a result, the pullovers at issue here are classified in subheading 6110.30, HTSUS, as pullovers made with “man-made fibers” in accordance with Subheading Note 2(A) to Section XI, HTSUS, and Note 2 to Section XI, HTSUS.
Based on the foregoing, we conclude that the pullovers at issue are classified under subheading 6110.30.3053, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Other: Men’s or boys’: Other.”
HOLDING:
By application of GRIs 1 and 6, the men’s and boys’ pullovers at issue are classified in subheading 6110.30.3053, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Other: Men’s or boys’: Other.” The 2019 column one general rate of duty is 32%.
You are instructed to DENY the protest.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division