H292800

HQ H292800 February 7, 2020 OT:RR:CTF:FTM H292800 JER CATEGORY: Classification TARIFF NO.: 6117.10.20 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 cloth

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 p