OT:RR:CTF:FTM H292800 JER
Port Director
Port of Chicago
U.S. Customs and Border Protection
5600 Pearl Street
Rosemont, IL 60018
RE: Application for Further Review of Protest No. 3901-2017-101493; Tariff Classification of women’s knitwear
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3901-2017-101493, timely filed on behalf of Hayabusa Fightwear Inc. also known as Lululemon Athletica (“Protestant”), concerning the classification of women’s knitwear under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise was entered between June 28, 2016 and July 27, 2016 under heading 6110, HTSUS. Protestant submitted a Post Summary Correction (“PSC”) on September 26, 2016, asserting classification under heading 6117, HTSUS. On January 11, 2017, CBP liquidated the entries at issue under heading 6114, HTSUS, which provides for: “Other garments, knitted or crocheted.” Protestant timely filed its protest on May 17, 2017, requesting re-classification of the subject merchandise under heading 6117, HTSUS.
According to the May 17, 2017 submission, the subject merchandise is a rectangular piece of knit fabric, composed of 53 percent nylon, 40 percent polyester, and 7 percent Lycra elastane. It is marketed as the Vinyasa Wrap and is designed to be worn as a shawl, wrap, or scarf. The submission notes that the Vinyasa Wrap cannot be worn on its own, but rather is designed to be worn in conjunction with an upper body garment to create a layering effect. The article features two slits running horizontally across the middle of the item which function as arm holes.
The horizontal slits allow the article to be worn across the back and shoulders like a shawl and extend down to the wearer’s waist. In the front, the article extends down to the waist and hangs open, creating a cardigan-like appearance that leaves the wearer’s chest exposed. The Vinyasa Wrap is sleeveless and only covers the wearer’s upper arms and does not provide any meaningful coverage to the lower body. Snaps are featured on the vertical edges of the article in question.
The Vinyasa Wrap can be worn as a wrap, by donning the article as a shawl, gathering up the cascading fabric on either side, and fastening the snaps together at the front of the wearer. The Vinyasa Wrap can also be worn as a scarf around the neck; providing significant coverage to the wearer’s shoulders and neck.
ISSUE:
Whether the subject women’s knitwear, with its multiple features and versatility, is classifiable under heading 6110, HTSUS, heading 6114, HTSUS, or under heading 6117, HTSUS.
LAW AND ANALYSIS:
Initially, we note that this 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 first entry (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. 3901-2017-101493 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
Classification under the HTSUS is made 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 2016 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:
* * *
6114 Other garments, knitted or crocheted:
* * *
6114.30 Of man-made fibers:
* * *
6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts or garments or of clothing accessories:
6117.10 Shawls, scarves, mufflers, mantillas, veils and the like:
6117.10.20 Of man-made fibers……………………………………………………
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 or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to 61.10 states, in relevant part, that:
This heading covers a category of knitted or crocheted articles….designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles) [.]
The EN to 61.14 states, in relevant part, that:
This heading includes, inter alia :
Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc.
Clerical or ecclesiastical garments and vestments (e.g., monk’s habits, cassocks, copes, soutanes, surplices).
Professional or scholastic gowns and robes.
Specialized clothing for airmen, etc. (e.g., airmen’s electricity heated clothing).
Special articles of apparel, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas, used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts and breast plates, ice hockey pants, etc. are excluded (heading 95.06).
[Emphasis in original]
The EN to 61.17 states, in relevant part, that:
This heading covers made up knitted or crocheted accessories, not specified or included in the preceding headings of this Chapter or elsewhere in the Nomenclature. The heading also covers knitted or crocheted parts of garments or of clothing accessories, (other than parts of articles of heading 62.12).
The heading covers, inter alia:
Shawls, scarves, mufflers, mantillas, veils and the like.
[Emphasis in original]
Protestant argues that CBP incorrectly liquidated the subject women’s knitwear known as the “Vinyasa Wrap” under heading 6114, HTSUS. Instead, Protestant asserts that the subject “Vinyasa Wrap” is properly classified under 6117, HTSUS. In support of its position, Protestant cites to New York Ruling Letter (“NY”) N241914, dated June 5, 2013, in which CBP classified a knit article referred to as the “Smart Wrap” under heading 6117, HTSUS. Protestant argues that the Smart Wrap of NY N241914 is virtually identical to the subject Vinyasa Wrap as it is designed to be a versatile clothing article which features characteristics that are described by more than one heading.
In NY N241914, CBP determined that the “Smart Wrap” was prima facie classifiable under two or more HTSUS headings. Specifically, the “Smart Wrap” of NY N241914 was said to possess the characteristics of a cardigan-like sweater of heading 6110, HTSUS, as well as that of a shawl or scarf of heading 6117, HTSUS. In NY N241914, CBP determined that neither characteristic imparted the essential character of the article. As a result, CBP classified the Smart Wrap of NY N241914 under heading 6117, HTSUS, pursuant to GRI 3(c) as heading 6117, HTSUS, occurred last in numerical order.
There are three competing headings under the HTSUS which must be considered for classification of the merchandise under consideration: heading 6110, HTSUS, which provides for knitted and crocheted articles …designed to cover the upper parts of the body; heading 6114, HTSUS, which provides for other knitted or crocheted garments; and, heading 6117, HTSUS, which provides for other knitted or crocheted clothing accessories.
First, we consider classification of the subject Vinyasa Wrap under heading 6110, HTSUS. Much like the Smart Wrap” of NY N241914, the Vinyasa Wrap’s length extends down to the waist area and hangs open. The ENs to heading 6110, HTSUS, state, in pertinent part, that “[t]he heading covers a category of knitted and crocheted articles …designed to cover the upper parts of the body…” Under our facts, the construction and design of the Vinyasa Wrap does not provide sufficient body coverage to be classified under heading 6110, HTSUS. In particular, the horizontal slits, which form its arm holes, are open and expose the middle section of the torso down to the waist area. Moreover, this article is sleeveless and extends to the waist only in the front and back of the wearer. Lastly, the article is open in the front and is wrapped or draped around the wearer’s body. As such, it lacks the body coverage associated with the sweaters and pullovers of heading 6110, HTSUS. Accordingly, the subject Vinyasa Wrap is not described by the terms of heading 6110, HTSUS.
The next issue for determination is whether the subject Vinyasa Wrap should be considered a garment of heading 6114, HTSUS, or an accessory of heading 6117, HTSUS. Heading 6114, HTSUS, provides, in relevant part, for other garments, knitted or crocheted and is reserved for garments that are not more specifically provided for in any of the headings of Chapter 61. While this heading is a basket provision, the garments classifiable in heading 6114, HTSUS, normally are those garments that either provide a greater degree of coverage to the wearer than the subject Vinyasa Wrap or could be work without any other articles of clothing.
The EN to heading 6117, HTSUS, state that “the heading covers, inter alia, shawls, scarves, mantillas, veils, and the like.” Although the terms set forth in heading 6117, HTSUS, i.e. shawls, scarves, mantillas, and veils are not defined in the EN to heading 6117, HTSUS, we note that these same terms are defined in the EN to heading 6214, HTSUS. The EN to 6214, HTSUS, states in relevant part:
Shawls. These are usually square, triangle or circular, and large enough to cover the head and shoulders.
Scarves and mufflers. These are usually square or rectangular and are normally worn round the neck.
Mantillas. These are kinds of light shawls or scarves, usually of lace, worn by women over the head and shoulders.
Veils. This description applies to a variety of articles, generally made of light, transparent or net material, or sometimes of lace, whether worn for ornamental or utilitarian purposes (e.g., wedding, mourning, communion or similar veils and hat or face veils).
In Headquarters Ruling Letter (“HQ”) 964232, dated September 1, 2000, CBP determined that a capelet (a small cape) was classified as an accessory under heading 6117, HTSUS, rather than as a garment of heading 6114, HTSUS. The decision in HQ 964232 noted that the “capelet” possessed the features associated with a shawl, cape, and a poncho in that it was sleeveless (with no arms), was designed to be worn over the shoulders, was loose fitting and like a shawl provided coverage which did not extend beyond the mid-upper body. In HQ 964232, CBP applied the rule of ejusdem generis; finding that the capelet was of the same type and kind as the exemplars enumerated in heading 6117, HTSUS, and was more akin to a shawl than it was a garment of heading 6114, HTSUS. CBP further stated that while the capelet was not eo nomine provided for within heading 6117, HTSUS, the heading allowed for accessories which have a likeness to the articles which are specifically named in the heading. Thus, CBP considered the capelet to be within the purview of “… an the like” of heading 6117, HTSUS.
In this case, the subject Vinyasa Wrap can be looped around the neck providing coverage exclusively to the neck area as a scarf. On the other hand, the article can also be described as a shawl or wrap. It is sleeveless with armholes that are slit horizontally, covering only the back and shoulder areas. The vertical snaps fasten together at the front of the wearer creating coverage for the front and back of its wearer. When worn in this manner, the subject Vinyasa Wrap presents as a shawl or wrap. In each instance the evidence establishes that the subject Vinyasa Wrap is ejusdem generis as those articles enumerated under heading 6117, HTSUS.
Moreover, much like the capelet in HQ 964232, the subject Vinyasa Wrap is not designed to be worn alone. Instead, it is designed and constructed to be worn in conjunction with another clothing article with that other clothing article worn underneath the subject Vinyasa Wrap. As demonstrated by the Protestant’s submission, the subject Vinyasa Wrap is worn over top of the primary clothing article. In each instance, whether worn as a scarf, shawl or wrap, the subject Vinyasa Wrap accents or adds to the beauty, convenience, or effectiveness of the garment worn underneath.
Lastly, when presented with articles which are ambiguous in appearance, CBP will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. In this regard, we follow the rationale set forth in Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986), wherein the Court noted that “the merchandise itself may be strong evidence of its use.” In the instant case, the Vinyasa Wrap is advertised and marketed according to its versatility both as a shawl and as a wrap. The Lululemon brand company produced a demonstration video providing instructions on the multiple ways the Vinyasa Wrap and scarf can be worn. This instructional video, along with similar instructions located on the internet, indicate that the Vinyasa Wrap compliments the primary garment while offering versatility in its use as an accessory. How to Wear Vinyasa Scarf in 7 Ways, Lululemon, available on YouTube at https://www.youtube.com/watch?v=yfBwBlrpb0U (last visited, 11/19/2019).
HOLDING:
By application of GRI 1, the knitted wrap is classifiable in heading 6117, HTSUS. The merchandise is specifically classified in subheading 6117.10.20, HTSUS, which provides for: “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Shawls, scarves, mufflers, mantillas, veils and the like: Of man-made fibers.” The 2016 column one, general rate of duty is 11.3% ad valorem.
You are instructed to Grant the Protest in Full. 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.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division