H326665

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H326665 November 21, 2022 OT:RR:CTF:FTM HQ H326665 MJD CATEGORY: Classification TARIFF NO.: 6110.30.30 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 t

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