Application for Further Review of Protest No: 4701-06-100384; Classification of a Woman’s Upper Body Garment

HQ H006418 April 27, 2010 CLA-2 OT:RR:CTF:TCM H006418 ASM CATEGORY: Classification TARIFF NO.: 6206.10.0040 Area DirectorBureau of Customs and Border Protection JFK International Airport Area c/o Chief, Liquidation and Protest Branch Building 77 JFK International Airport Jamaica, New York 11430 Re: Application for Further Review of Protest No: 4701-06-100384; Classification of a Woman’s Upper Body Garment Dear Area Director: This is in response to your memorandum dated January 24, 2007, forwarding Application for Further Review (AFR) of Protest No. 4701-06-100384, which was timely filed on June 14, 2006, on behalf of Etro USA Inc. The AFR concerns the classification and liquidation by Customs and Border Protection (CBP) of a woman’s upper body garment under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: Based on the limited information and photographs submitted in conjunction with the instant AFR, the merchandise at issue appears to be a woman’s upper body garment constructed of woven fabric, 70 percent or more by weight of silk. It has long full length bell sleeves, v-shaped neckline with a front split, tie closure, and two side seams. The lower hem descends below the waist. ISSUE: Whether the subject merchandise is properly classified as a shawl-like garment under heading 6214, HTSUS, or a blouse under heading 6206, HTSUS, or a cape or cloak under heading 6202, HTSUS. LAW AND ANALYSIS: The protest was properly filed under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004.  (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. 4701-06-100384 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b). Specifically, Protestant argues that this matter has not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. The following provisions of the HTSUS are under consideration: 6202 Women’s or girls’ overcoats, carcoats, capes, cloakes, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: Overcoats, carcoats, capes, cloaks and similar coats: 6202.19 Other textile materials: 6202.19.1000 Containing 70 percent or more by weight of silk or silk waste… * * * * * * * * * * * * 6206 Women’s or girls’ blouses, shirts and shirt-blouses: Of silk or silk waste Other: 6206.10.0040 Containing 70 percent or more by weight of silk or silk waste… * * * * * * * * * * * * Shawls, scarves, mufflers, mantillas, veils and the like: 6214.10 Of silk or silk waste: 6214.10.1000 Containing 70 percent or more by weight of silk or silk waste … Specifically, Counsel for the Importer argues that this is a “shawl-like” garment in subheading 6214.10.1000, HTSUS. Alternatively, it is asserted that sufficient coverage is provided by these garments and they are intended to be worn over other clothing like a “cape” or “cloak” which are provided for in subheading 6202.19.1000, HTSUS. In support of classification as a “shawl-like” garment of heading 6214, HTSUS, protestant cites to a CBP Headquarters Ruling Letter (HQ) 967889, dated February 1, 2006, classifying a silk “capelet” in subheading 6214.10.1000, HTSUS, which provides for “Shawls, scarves, mufflers, mantillas, veils and the like: Of silk or silk waste: Containing 70 percent or more be weight of silk or silk waste.” In HQ 967889 the “capelet” is described as a sheer lightweight garment that fits over the head through a center slit with no collar or means of closure. The “capelet” was designed to cover the shoulders and the upper portion of the wearer’s arms but does not cover the elbows or reach the wearer’s waist. First, the subject garment can be distinguished from the “capelet” by the fact that it has a deep v-neckline with tie closure. As such, there is no coverage at the neck or shoulders. Furthermore, unlike the “capelet”, the subject garment has long formed sleeves that descend past the wrist, closed side seams that provide shape at the arms and sides of the garment, and it is designed to fall below the waist. The Explanatory Notes1 to heading 6214, which provide, in relevant part, as follows: This heading includes: Shawls. These are usually square, triangular or circular, and large enough to cover the head and shoulders. The subject article has formed full length sleeves, side seams, and a wide v-neck that leaves the shoulders partially exposed. It lacks any similarities to a shawl in that it provides no protection or coverage over the head or shoulders. This is a formed garment with sleeves, side seams, and a neckline. It is not designed to drape and wrap in a fluid length of fabric over the upper part of the body. It is a formed upper body garment with side seams and sleeves which is not in any way similar to a “shawl” or “shawl-like” garment. Thus, we do not agree with the Protestant’s proposed classification. Alternatively, the Protestant asserts that the subject garment is intended to be worn over other garments like a “cape” or “cloak”. As such, Protestant proposed that the subject garment be classified in heading 6202, HTSUS. __________ 1 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 nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to heading 6202, provides that “The provisions of the Explanatory Note to heading 6102 apply, mutatis mutandis, to the articles of this heading”. Similarly, the EN to heading 6102 refers to EN 6101 as applying “mutatis mutandis”. The EN to heading 6101 provides, in relevant part, as follows: This heading covers a category of knitted or crocheted garments for men or boys, characterised by the fact that they are generally worn over all other clothing for protection against the weather. It includes: Overcoats, raincoats, car-coats, capes including ponchos, cloaks, … * * * In addition, the CBP Informed Compliance Publication (“ICP”), provides basic definitions of apparel terms that are commonly used in the HTSUS and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. See CBP Informed Compliance Publication on Classification: Apparel Terminology under the HTSUS, June 2008. The Informed Compliance publication describes “Overcoats, carcoats, capes, cloaks and similar garments (6101,6102, 6201, 6202)” as follows: … a group of outerwear garments which cover both the upper and lower parts of the body, and which are normally worn over other garments for warmth and protection from the weather. Overcoats and carcoats are thigh length or longer, with sleeves, with or without a means of closure, and with a full-front opening. This group also includes capes, which are sleeveless outerwear garments worn for warmth and protection from the weather. They generally have front and back coverage that extends to the waist or below, and side coverage that extends to the elbow or below. Capes hang loosely from the shoulders, usually have slits for arms and cover the back, shoulders and arms, and may or may not have a full-front opening. The instant garment is constructed from a relatively lightweight fabric and has a very low-cut “v” neckline, which provides minimal warmth or protection from the elements. Accordingly, we find that it is not properly classified as “cape” or “cloak” of heading 6202, HTSUS. In HQ 959416, dated July 5, 1996, CBP determined that a woman’s garment was properly classified in heading 6211, HTSUS, as an outerwear “jacket” rather than a “blouse” of heading 6206, HTSUS. However, in this instance it is useful to consider the following “blouse” definitions that were set forth in HQ 959416 as follows: Blouses are outer garments usually extending from the neck or shoulders to the vicinity of the waistline. However, also included in the category are overblouses and similar garments which may extend to mid-thigh area or below, and which are frequently slit up the leg. Blouses may have a collar treatment of any type or no collar. The closure may be positioned on the front, back, or side, or the garment may even be without closure as in a pullover… [Citing to the “Textile and Apparel Category Guidelines (Guidelines), 13/88, dated November 23, 1988”, definitions for blouses] Loose waist or bodice of various types extending from neckline to waistline or below. Worn inside or outside separate skirt. [Citing to “The Fashion Dictionary”, by Mary Brooks Picken, 1957, at 23] Clothing for the upper part of the body usually softer and less tailored than a shirt, worn with matching or contrasting skirt, pants, suit or jumper. Formerly called a waist. [Citing to “The Essential Terms of Fashion”, by Charlotte Mankey Calasibetta, 1986 at 9] The ICP definition provided for “Blouses, shirts and shirt-blouses (woven, women’s and girls’) (6206, 6211)” provides in relevant part as follows: … garments designed to cover the upper part of the body and extend from the neck area to or below the waist. The amount of coverage afforded the wearer includes shoulder, armhole and neckline. These garments may have long sleeves, short sleeves or no sleeves. They may have a full or partial opening starting at the neckline, and a collar treatment of any type, including a hood, or no collar. They may have either no closure as in a pullover or a closure positioned on the front, back, or side. We find that based on the limited information provided, the subject garment meets the aforementioned definitions of a “blouse” in that it covers the upper part of the body and extends from the neck area to below the waist. It also has a pullover design, long sleeves, and a tie closure. In addition it is softer and less tailored than a shirt which is one of the notable features of a blouse. In view of the foregoing, we now find that the subject article is a woman’s blouse which is classified under heading 6206, HTSUS. HOLDING: Pursuant to GRI 1, the subject merchandise is correctly classified in subheading 6206.10.0040, HTSUS, which provides for “Women’s or girls’ blouses, shirts and shirt-blouses: Of silk or silk waste, Other: Containing 70 percent or more by weight of silk or silk waste”. The 2006 general column one rate of duty was 6.9 percent ad valorem. You are instructed to DENY the protest. 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. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division