CLA-2 RR:CTF:TCM 967889 BtB
Stephen M. Zelman, Esq.
Stephen M. Zelman & Associates
888 Seventh Avenue—Suite 4500
New York, NY 10106
Re: Classification of a silk capelet from China; NY L82042 revoked
Dear Mr. Zelman:
On February 16, 2005, the National Commodity Specialist Division (“NCSD”) of U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) L82042 to you, on behalf of Elie Tahari, Ltd. In NY L82042, CBP classified a silk capelet from China in subheading 6217.10.1090, Harmonized Tariff Schedule of the Untied States Annotated (“HTSUSA”), which provides for: “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Containing 70 percent or more by weight of silk or silk waste, other.”
We have reviewed NY L82042 and have determined that the classification set forth for the capelet in that ruling is incorrect. This ruling, Headquarters Ruling (“HQ”) 967889, revokes NY L82042 and provides the correct classification of the capelet.
FACTS:
In NY L82042, the capelet, also identified as “Style No. G88OK505,” was described as follows:
The submitted sample style no. G88OK505 is a woven 100% silk capelet. The sheer lightweight garment fits over the head through a center slit. The article has no collar or means of closure. It covers the shoulders and the upper portion of the wearer’s arms. It does not cover the elbows or reach the wearer’s waist.
ISSUE:
Whether the classification of the capelet at issue?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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 GRI may then be applied, in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The headings under consideration for classification of the capelet are: heading 6202, heading 6211, heading 6214, and heading 6217, HTSUSA. Heading 6202, HTSUSA, provides for: “Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204.” Heading 6211, HTSUSA, provides for: “Track suits, ski-suits and swimwear; other garments.” Heading 6214, HTSUSA, provides for: “Shawls, scarves, mufflers, mantillas, veils and the like.” And, heading 6217, HTSUSA, provides for: “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212.”
Tariff terms are "construed in accordance with their common and popular meaning, in the absence of contrary legislative intent." E.M. Chemicals v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990). “Capelet” is not mentioned in the HTSUSA or the EN. However, the common definition of “capelet” is a “small cape.” See Dictionary of Fashion, Charlotte Mankey Calasibetta 90 (1998).
Capelets share the features of several articles: shawls, capes, and ponchos. A discussion of the features of each of these articles is relevant to the classification of the instant capelet. See HQ 963859, dated June 9, 2000; HQ 964261, HQ 964319, HQ 964320, HQ 964321, HQ 964322, all dated July 7, 2000; and HQ 964232, dated September 1, 2000. These articles are also not defined in the HTSUSA; however, we have recognized that the following definitions represent their common meanings:
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).
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.
The capelet at issue is pulled over the head like a poncho, yet its length is not to or below the waist as a typical poncho. Much like a cape or poncho, the item also has no arms or sleeves. Additionally, 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. Keeping these features in mind, we turn to the headings under consideration in this matter.
Heading 6202, HTSUSA, provides for: “Women’s or girls’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204.” The EN to heading 62.02 state that: the provisions of the EN to heading 61.02 apply, mutatis mutandis, to the articles of this heading. The EN to heading 61.02, in turn, state that the provisions of the EN to heading 61.01 apply mutatis mutandis, to the articles of heading 61.02. 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 notes that capes and ponchos are specifically included in the heading.
While we have acknowledged that the capelet at issue does share certain features with a cape or poncho, it 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. CBP views the length of a garment to be sometimes an influential factor in determining how a garment is classified. In the case at hand, if the article at issue reached to at least the waist, the classification would not be an issue; the article would most likely be described as a poncho within heading 6202, HTSUSA. However, due to the capelet at issue’s length and its lack of protection against the weather, we find that it is not described by heading 6202, HTSUSA.
Heading 6211, HTSUSA, provides for: “Track suits, ski suits and swimwear; other garments.” The EN to heading 6211 state that the provisions of the EN to heading 61.12 concerning track suits, ski suits and swimwear and of the EN to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading. As we are concerned if the capelet is classified as an “other garment,” we consult the EN to heading 6114, HTSUSA, which state, in pertinent part, that the “heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of th[e] Chapter.” This EN lists exemplars included in the heading, and none are similar to the capelet at issue. While this heading serves as a basket provision, the garments classifiable in heading 6114, HTSUSA, generally are those garments that either provide a greater degree of coverage to the wearer than the subject capelet or could be worn without any other articles of clothing. In light of these considerations, we find that the capelet at issue in not described by heading 6211, HTSUSA.
Heading 6214, HTSUSA, provides for: “Shawls, scarves, mufflers, mantillas, veils and the like.” The EN to the heading state, in pertinent part, that:
This heading includes:
(1) Shawls. These are usually square, triangular or circular, and
large enough to cover the head and shoulders.
Scarves and mufflers. These are usually square or rectangular and are
normally worn around the neck.
Mantillas. These are kinds of light shawls or scarves, usually of lace, worn
by women over the head and shoulders.
While heading 6214 does not specifically cover the article at issue, it does contain a list of particular items followed by a general phrase, “… and the like.” It is well settled that when a list of items is followed by a general world or phrase, the rule of ejusdem generis is used to determine the scope of the general word or phrase. See Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995). In classification cases, ejusdem generis requires that, for any imported merchandise to fall within the scope of the general term or phrase, the merchandise must possess the same essential characteristics or purposes that united the listed exemplars preceding the general term or phrase. See Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994). However, a classification under the ejusdem generis principle is inappropriate when an imported article has a specific and primary purpose that is inconsistent with that of the listed exemplars in a particular heading.” See Aves. In Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999).
CBP has, in multiple rulings, examined whether capelets possess the same essential characteristics and purposes of the exemplars listed in heading 6214, HTSUSA. See e.g., HQ 963859, HQ 964261, HQ 964319, HQ 364320, HQ 364321, HQ 964322, and HQ 964232. In each these rulings, CBP found that capelets do possess the essential characteristics and purposes of shawls, articles listed in heading 6214, HTSUSA. CBP’s findings were based on the fact that capelets and shawls are worn in the same manner, are of similar length, and offer similar elemental protection. In each of these rulings, CBP stated that the capelet at issue in that ruling “… 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.”
We do not find the essential characteristics and purposes of the capelet at issue in this ruling to be different than the capelets that were the subjects of the previous CBP rulings cited above. As a result, we find the capelet at issue to be classified in heading 6214, HTSUSA, pursuant to an ejusdem generis analysis.
Heading 6217, HTSUSA, provides for: “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212.” The EN to heading 6217 states that: “This heading covers made up textile clothing accessories, other than knitted or crocheted, not specified or included in other headings of this Chapter or elsewhere in the Nomenclature.” As we have established that the capelet at issue is included in heading 6214, HTSUSA, pursuant to an ejusdem generis analysis, the article is therefore not classified in heading 6217, HTSUSA.
HOLDING:
The capelet at issue, also identified as “Style No. G88OK505,” is classified in heading 6214, HTSUSA. It is specifically provided for in subheading 6214.10.1000, HTSUSA, which provides for: “Shawls, scarves, mufflers, mantillas, veils and the like: Of silk or silk waste: Containing 70 percent or more by weight of silk or silk waste.” The applicable column one, general duty rate for the merchandise under the 2005 HTSUSA is 1.2% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.
EFFECT ON OTHER RULINGS:
NY L82042, dated February 16, 2005, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial Trade and Facilitation Division