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HQ 964225




June 20, 2000

CLA-2 RR:CR:TE 964225 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6117.10.2010

Mrs. Lisa York
Speigel Imports
Assistant Import Manager-HQ 7
3500 Lacey Road
Downers Grove, IL 60515

RE: Tariff Classification of Knitted Capelet Accessory Made in Hong Kong; Revocation of PD F82960

Dear Mrs. York:

On February 28, 2000, Customs issued Port Decision (“PD”) Letter PD F82960 to your company, Speigel Imports, regarding the tariff classification of a women’s knitted capelet. The capelet was originally classified as a women’s knitted cape under subheading 6102.30.1000 of the Harmonized Tariff Schedule Annotated (“HTSUSA”). Upon review, Customs has determined that the capelet was erroneously classified. The correct classification for the product should be under subheading 6117.10.2010, HTSUSA, based on classification as a knitted accessory. PD F82960 is hereby revoked for the reasons set forth below.

FACTS:

The submitted sample, Style 16-6059s/catalog number 16-6235, is a knitted poncho like article designed to be worn by women. The merchandise is composed of 35 percent acrylic, 32 percent wool, 32 percent nylon, and 1 percent spandex. The item has no sleeves or pockets, a funnel neckline, a full five button frontal closure and a straight edge bottom. Since the merchandise is manufactured unsized, the amount of coverage provided will vary depending on the size of the woman wearing the article; however, the article is designed to provide coverage to the shoulders, upper back and chest area as well as the upper arms, but does not extend to the abdomen area or waist. It measures approximately 11 inches in length below the neckline. It is designed to be worn over other outerwear such as a blouse or shirt.

ISSUE:

Whether the subject merchandise is properly classified under heading 6102, HTSUSA, providing for capes, cloaks and similar articles, or whether the appropriate heading is 6117, HTSUSA, as a knitted clothing accessory, or, in the alternative, under heading 6114, HTSUSA, as an other knit garment?

LAW AND ANALYSIS:

Classification under the HTSUSA 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

There are three competing headings under the HTSUSA which must be considered for classification of the merchandise under consideration: heading 6102 provides for inter alia women’s knitted or crocheted coats, capes, windbreakers and similar articles; heading 6114, provides for other knitted or crocheted garments; and heading 6117, provides for other knitted or crocheted clothing accessories.

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. We note the following definitions:

Shawl- square or oblong piece of material used for shoulder covering and is worn by women; The term also implies any material used for shoulder or head covering in the accepted sense of today. The Modern Textile and Apparel Dictionary, George E. Linton 506 (1973).

Cape- sleeveless outer garment of any length hanging loosely from the shoulders; usually covering back, shoulders, arms. The Fashion Dictionary, Mary Brooks Picken 56 (1973).

Capelet- any small cape. Dictionary of Fashion, Charlotte Mankey Calasibetta 90 (1998).

Poncho – (1) fashion item shaped like a square or small oblong blanket with a hole in the center for the head, frequently fringed; (2) utilitarian garment consisting of waterproof fabric with a slash in the center for the head; when worn it was used as a rain cape, when not worn it could be used as a blanket. Dictionary of Fashion at 446.

Style 16-6059s is typical of a new line of items which are said to be the hot new fashion item for Fall 2000; however, the merchandise is not typical of those items to which it has been likened such as a poncho, cape or shawl. The merchandise under consideration is styled in such a way that it possesses at least one feature of each of the aforementioned items. Style 16-6059s is pulled over the head like a poncho, yet the length is not to or below the waist as is the length in a typical poncho. Much like a cape or poncho, the item also has no arms or sleeves; yet it is not intended to be loose fitting as it is cut to be snug around the shoulders. In addition, the size of the item and the amount of coverage provided to the wearer resembles the amount of coverage typically afforded by a shawl in that it does not extend beyond the mid-upper body. However, upon extensive research, Customs has determined that the appropriate term for this merchandise is that of “capelet” which is not defined in the HTSUSA or EN.

In applying the rule of ejusdem generis to determine whether an item is embraced within a particular class, the courts have looked to the articles enumerated within that class to ascertain the characteristics they have in common. Kotake Co., Ltd. v. United States, 58 Cust. Ct. 196, C.D. 2934 (1967). The class of items classified within heading 6102 is that typical of outer wear such as coats, jackets, and similar articles which provide protection from the weather.

The EN to heading 6102, HTSUSA, state that the provisions of the EN to heading 6101, HTSUSA, apply mutatis mutandis to the articles of the heading. The EN to heading 6101 state that the heading covers a category of garments characterized by the fact that they are generally worn over all other clothing for protection against weather and specifically include capes and ponchos within this heading. The subject merchandise is worn for style and decorative purposes and lacks coverage and other features which would afford the wearer protection from the elements. The short length of the item is not conducive for providing any warmth below the shoulder or chest area.

Customs views the length of a garment to be sometimes an influential factor in determining how a garment is classified. For instance, if the subject merchandise reached to at least the waist, the classification would not be an issue; most likely all concerned would consider the merchandise to be a poncho within heading 6102, HTSUSA. However, this item only extends at a maximum to approximately eleven inches in length. The short length in conjunction with the lack of protection against the weather precludes classification in heading 6102, HTSUSA.

Therefore, the next issue for determination is whether the capelet should be considered a garment of heading 6114, HTSUSA, or an accessory of heading 6117, HTSUSA. The EN to heading 6114, HTSUSA, state the “heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of th[e] Chapter.” While this heading is a basket provision, the garments classifiable in heading 6114 normally are those garments which either provide a greater degree of coverage to the wearer than the subject capelet or could be worn without any other articles of clothing.

The EN to heading 6117, HTSUSA, state that “the heading covers, inter alia, shawls, scarves, mufflers, mantillas, veils, and the like.” (emphasis added.) Although the terms set forth in heading 6117, i.e. shawls, scarves, mantillas, and veils, are not defined in the EN to heading 6117, HTSUSA, we note that these same terms are defined in the EN to heading 6214, HTSUSA. The EN to heading 6214, HTSUSA, states in relevant part:

(1) Shawls. These are usually square, triangular or circular, and large enough to cover the head and shoulders.

(2) Scarves and mufflers. These are usually square or rectangular and are normally worn around the neck.

(3) Mantillas. These are kinds of light shawls or scarves, usually of lace, worn by women over the head and shoulders.

The EN further provides that “the edges of these articles are usually hemmed, rolled, bordered or fringed.” (emphasis added.)

In applying the rule of ejusdem generis to determine whether the capelet is embraced within heading 6117, HTSUSA, Customs has looked at the common characteristics of the capelet and the aforementioned articles. (See Kotake, 58 Cust. Ct. 196, C.D. 2934.) Style 16-6059s is intended to be worn in much the same sense as a shawl in that it is to cover the shoulders and to be worn over other garments when the weather would not require a heavier coat or wrap. The new fashion trends have dictated that Style 16-6059s resemble a pull-over poncho in appearance yet resemble a shawl in length and the amount of elemental protection afforded to the wearer. As such, classification as an accessory in heading 6117, HTSUSA, is appropriate.

While the subject capelet is not eo nomine provided for within heading 6117, HTSUSA, the heading does allow for accessories which have a likeness to the articles which are specifically named in the heading. Customs considers the subject capelet to be within the purview of “. . . and the like” of subheading 6117.10, HTSUSA. (emphasis added).

Finally, in past rulings Customs has stated that the crucial factor in the classification of merchandise is the merchandise itself. As stated by the court 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), “the merchandise itself may be strong evidence of use”. However, when presented with articles which are ambiguous in appearance, Customs 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 Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. Customs has been informed that other merchandise identical in function and design currently being sold in retail stores, is displayed in the accessory departments.

HOLDING:

PD F82960 is hereby revoked.

The capelet is properly classified under subheading 6117.10.2010, HTSUSA, 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 wool.” The capelet is dutiable at the general column one rate of 11.6 percent ad valorem. The textile restraint category is 459.

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 time of shipment, The Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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