OT:RR:CTF:FTM H312436 JER
Center Director
Apparel, Footwear & Textile (AFT)
Centers of Excellence & Expertise (CEE)
U.S. Customs and Border Protection
Attn: Sandra T. Lopez, Supervisory Import Specialist
RE: Internal Advice; tariff classification of arm, knee and leg warmers
Dear Center Director:
This internal advice is issued in response to the request of Pactimo, LLC, (“Pactimo”) in a correspondence dated June 17, 2020, for a binding ruling regarding the tariff classification of arm, knee and leg warmers under the Harmonized Tariff Schedule of the United States (“HTSUS”). Pursuant to the submission provided by Pactimo, the company has already entered the merchandise under heading 6117, HTSUS, which provides for: “Other made up clothing accessories, knitted or crocheted; knitted or crocheted or parts of garments or of clothing accessories.” Accordingly, we have converted the ruling request to an internal advice request for entries not yet liquidated (if any). In reaching our decision, we reviewed and considered the information provided by Pactimo.
FACTS:
The items in question are identified as Style #R01096, Alpine RT Thermal Arm Warmers; Style #R01097, Alpine RT Thermal Leg Warmers; and, Style #R01098, Alpine RT Thermal Knee Warmers. The arm, leg, and knee warmers are designed to protect a cyclist from changes in weather temperature. The items are also described as garments made of ThermaGuard material having high compression value, which enhances the contour of the fit and provides muscle support for athletic activity.
Item #1, Style #R01096, described as the “Alpine RT Thermal Arm Warmer,” is a unisex arm sleeve, which provides coverage from the wrist to just below the shoulder. The tapered tubular arm warmer measures 16 ¼ in length, is 4 ¼ inches wide at the shoulder, and 3 inches wide at the wrist. The main body area of the arm warmer is composed of 84 percent nylon and 16 percent spandex knitted fabric with a weight of 250 g/m2. The two inch, black reflective, panel by the wrist is composed of 78 percent nylon, 12 percent spandex, 8 percent glass, and 2 percent polyurethane knitted fabric and weighs 270g/m2. The arm warmer has an elasticized opening with the backside consisting of three rows of silicone dots to prevent slippage.
Item #2, Style #R01097, described as the “Alpine RT Thermal Leg Warmer,” is a unisex leg covering, which provides coverage from the ankle to mid-point on the thigh. The tapered tubular leg warmer measures 21 inches in length, is 6 ½ inches wide at the mid-point of the thigh, and 3 inches wide at the ankle. The main body area of the leg warmer is composed of 84 percent nylon and 16 percent spandex knitted fabric and weighs 250 g/m2. The 3 ¾ inch, black reflective, panel by the ankle is composed of 78 percent nylon, 12 percent spandex, 8 percent glass, and 2 percent polyurethane knitted fabric and weighs 270 g/m2. The leg warmer has an elasticized opening with the backside consisting of three rows of silicone dots to prevent slippage. The zipper at the ankle is designed for ease of putting on and removing the leg warmer.
Item #3, Style #R01098, described as the “Alpine RT Thermal Knee Warmer,” is a unisex knee covering, which provides coverage from just below the knee to mid-point on the thigh. The tapered tubular knee warmer measures 13 ¾ inches in length, is 7 ¾ inches wide at the mid-point of the thigh, and 6 ½ inches wide just below the knee. The main material of the knee warmer is composed of 84 percent nylon and 16 percent spandex knitted fabric with a weight of 250 g/m2. The 2 ½ inch angled opening just under the knee is black reflective knitted fabric composed of 78 percent nylon, 12 percent spandex, 8 percent glass, and 2 percent polyurethane and weighs 270 g/m2. The knee warmer has an elasticized opening with the backside consisting of three rows of silicone dots to prevent slippage.
ISSUE:
Whether the subject merchandise is classifiable under heading 6117, HTSUS, as a clothing accessory, or under heading 6307, HTSUS, as an other made-up article.
LAW AND ANALYSIS
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 2020 HTSUS provisions under consideration are as follows:
6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted or parts of garments or of clothing accessories:
6117.80 Other accessories:
* * *
Other…
6117.80.95 Other…
Of man-made fibers:
6117.80.9540 Other
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other…
6307.90.98 Other…
Other:
6307.90.9891 Other…
* * *
Chapter 90, Note 1 provides, in pertinent part, as follows:
Notes
This chapter does not cover:
* * *
(b) Supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, support for joints or muscles (section XI);
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 HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN to 61.17 provides in pertinent part, that:
The heading covers, inter alia :
(1) Shawls, scarves, mufflers, mantillas, veils and the like.
(2) Ties, bow ties and cravats.
(3) Dress shields, shoulder or other pads.
(4) Belts of all kinds (including bandoliers) and sashes (e.g., military or ecclesiastical), whether or not elastic. These articles are included here even if they incorporate buckles or other fittings of precious metal or are decorated with pearls, precious or semi precious stones (natural, synthetic or reconstructed).
(5) Muffs, including muffs with mere trimmings of furskin or artificial fur on the outside.
(6) Sleeve protectors.
(7) Kneebands, other than those of heading 95.06 used for sport.
* * *
(10) Pockets, sleeves, collars, collarettes, wimples, fallals of various kinds (such as rosettes, bows, ruches, frills and flounces), bodice fronts, jabots, cuffs, yokes, lapels and similar articles.
(11) Handkerchiefs.
(12) Headbands, used as protection against the cold, to hold the hair in place, etc.
* * *
The EN to 63.07 states, in relevant part, that:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
It includes, in particular:
* * *
(26) Support articles of the kind referred to in Note 1(b) to Chapter 90 for joints (e.g., knees, ankles, elbows or wrist) or muscles (e.g., thigh muscles), other than those falling in other headings of Section XI.
* * *
When addressing the classification of arm, knee and elbow sleeves and warmers, generally, CBP has previously determined that headings 6117 and 6307, HTSUS are implicated. See e.g., Headquarters Ruling Letter (“HQ”) 963734, dated March 28, 2003 and New York Ruling Letter (“NY”) N276138, dated June 10, 2016 (wherein CBP determined that certain arm sleeves were classified under heading 6117, HTSUS). In determining the proper classification of arm, knee or elbow sleeves and warmers, CBP has examined the design, use, and primary purpose of the article. Where it has been determined that such articles are a clothing accessory, those arm, leg and knee sleeves or warmers have been classified under heading 6117, HTSUS. See e.g., NY I84402, dated August 13, 2002 (CBP classified arm and knee warmers constructed of 80 percent polyamide, 20 percent elastic or 60 percent polyester, 40 percent polyamide knit fabric under heading 6117, HTSUS. The arm and knee warmers were used by cyclists as a form fitting extension of cycling shorts); HQ H006230, dated May 14, 2008 (CBP classified knitted arm sleeve protectors in heading 6117, HTSUS, because the sleeve protector was a protective barrier for the arm and shirt sleeve); and, NY N223310, dated July 13, 2012 (CBP classified arm, leg, and knee warmers constructed of a knitted synthetic fabric and designed to protect portions of cyclist’s legs from the cold under heading 6117, HTSUS, and heading 6406, HTSUS, respectively).
On the other hand, where such arm, leg and knee sleeves have been determined to be “support articles” within the meaning of Note 1(b) to Chapter 90, HTSUS, CBP has classified these articles in heading 6307, HTSUS. For example, in HQ H281032, dated February 6, 2017, CBP classified arm sleeves under heading 6307, HTSUS, because the arm sleeves had the capacity to provide compression support to the wearer’s elbow and arm while simultaneously bearing fashionable designs intended to compliment other clothing articles. In HQ H281032, CBP determined that the primary purpose for wearing the arm sleeve and forearm sleeve was to provide compression support to protect an injury and to retain warmth while playing basketball. In HQ H262218, dated February 6, 2020, CBP made a similar decision in classifying an article described as the Fan-Sleeve as a support and compression sleeve of heading 6307, HTSUS, despite the item being marketed and styled to compliment a fan’s favorite sports team. In NY N248199, dated December 12, 2013, CBP classified a compression sleeve made up of 80% nylon and 20% spandex knit textile fabric designed to support joints and muscles in heading 6307, HTSUS. Moreover, in HQ 965235, dated December 15, 2001, CBP classified a knee support article with an opening at the knee in heading 6307, HTSUS, because it was designed to provide support to the patella of the knee cap. Likewise, in NY N221556, dated July 11, 2012, CBP classified a therapeutic compression arm sleeve under heading 6307, HTSUS, because the article was designed to provide compression support to the wearer’s arm. See, e.g., NY N288723, dated August 28, 2017 (CBP classified compression sleeves under heading 6307, because the sleeves were primarily used to compress muscles). See also, NY N261548, dated March 11, 2015, (CBP classified a compression support arm sleeve under heading 6307, HTSUS); See also, NY N240246, dated May 1, 2013 (CBP classified a compression arm sleeve under heading 6307, HTSUS).
Clothing accessories are provided for under the terms of heading 6117, HTSUS. Accordingly, if such articles conform to the definition of a clothing accessory, these articles are classified under heading 6117, HTSUS, and are not considered to be support or compression articles (heading 6307, HTSUS). Yet, the term “accessory” is not defined in the tariff schedule. As such this tariff term must be construed in accordance with its common and commercial meanings. See, e.g., Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (1982). Oxford Dictionary defines “accessory” as “a thing that can be added to something else to make it more useful, versatile or convenient; a small article or item of clothing carried or worn to compliment a garment or outfit.” See https://www.lexico.com/en/definition/accessory (last visited 08/04/2020). Merriam-Webster Dictionary provides that an “accessory” is “an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else; auto accessory; clothing accessory.” See https://www.merriam-webster.com/dictionary/accessory (last visited 08/04/2020). Additionally, the ENs to heading 6117, HTSUS, explain that the heading includes articles such as: shawls, scarves, bow ties, belts, headbands (used as protection against the cold), sleeve protectors, and other clothing accessories. These articles are distinct from compression and support articles in both construction, design and purpose. For example, a “sleeve protector” is not the equivalent of a support or compression sleeve as it does not provide support to the body, joints or muscles. Rather, a “sleeve protector” of heading 6117, HTSUS, is designed and constructed to protect the sleeve of a garment from wear and tear, substances, liquids or other things that might affect the sleeve.
For purposes of distinguishing between a “support or compression article” of heading 6307, HTSUS, and a clothing “accessory” of heading 6117, HTSUS, we look to the articles design, construction and fundamental purpose. In HQ 963782, dated March 22, 2002, CBP noted that accessories must be related to or exhibit some connection to the primary clothing article and must be intended for use solely or principally as an accessory. Hence, there must be some nexus between the clothing article and the accessory (e.g., a tie or bow tie has a nexus with a shirt). Likewise, in HQ 088540, dated June 3, 1991, CBP stated that an accessory is an article that is intended for use solely or principally as an accessory. The exemplars enumerated in the ENs to heading 6117, HTSUS, are examples of accessories which are intended for use solely or principally as an accessory to the clothing articles or clothing outfits. Additionally, these exemplars adds to the beauty, convenience, or effectiveness. For example, a neck scarf aesthetically compliments a winter coat while also improving the effectiveness of maintaining warmth during cold temperatures.
The ENs to heading 6307, HTSUS, state that the heading includes support articles of the kind referred to in Note 1(b) to Chapter 90. According to the definition set forth in Note 1(b) to Chapter 90, support and compression articles, on the other hand, are designed and constructed to provide compression and support for joints (e.g., knees, ankles, elbows or wrist) or muscles (e.g., biceps, quads, or triceps). Compression or support sleeves of the kind discussed in HQ H281032 and HQ H262218 are designed to prevent injury, assist with injury recovery and stabilize joints, muscles and tendons by providing compression, warmth and stability to the affected area. Such articles are often worn during athletic activities, training or daily activities. 6 Compression Arm Sleeve’s Benefits You Need to Know, https://sleefs.com/blogs/news/51939585-6-compression-arm-sleeve-s-benefits-that-you-need-to-know; Compression Socks and Sleeves: When to Wear Them, How They Work, and Why You Should Be Wearing Them (June 2018), https://www.fleetfeet.com/s/chicago/news/compression-socks-and-sleeves-when-to-wear-them-how-they-work-and-why-you-should-be-wearing-them. Similarly, knee arm and elbow sleeves add compression and support for those suffering from various knee injuries and pain from meniscus tears, arthritis, mild strains or sprains. See Compression Knee Sleeves, at https://www.betterbraces.com/knee-braces/knee-sleeves. These articles may also present with artistic designs and appear fashionable. However, a fashionable design or the capacity to be worn in conjunction with a clothing outfit does not alter the fundamental and primary purpose of a support or compression sleeve. See HQ H281032 and HQ H262218. Lastly, support and compression sleeves are not classifiable in heading 6406, HTSUS, this heading expressly excludes knee and ankle supports (such as those consisting of elastic fabric designed to support or sustain weak joints).
Additionally, CBP has previously classified substantially similar support sleeves under heading 6307, HTSUS, for the same reasons presented herein. See e.g., NY N240245, May 1, 2013; NY N057848, April 23, 2009; HQ 965110, May 21, 2002; and NY G80012, August 3, 2000 (wherein CBP classified arm sleeves as joint and muscle support articles under heading 6307, HTSUS). In NY N248199, dated December 12, 2013, for example, CBP classified a compression sleeve made up of 80% nylon and 20% spandex knit textile fabric designed to support joints and muscles under heading 6307, HTSUS. Likewise, in NY N221556, dated July 11, 2012, CBP classified a therapeutic compression arm sleeve under heading 6307, HTSUS, because the article was designed to provide compression support to the wearer’s arm. In HQ 950659, dated January 21, 1992, CBP revoked HQ 086378, dated April 9, 1990, which classified elbow, wrist, knee and back warmers under heading 6117, HTSUS. In making its decision to rescind HQ 086378, CBP noted that the warmers did not satisfy the definition an accessory but did provided localized warmth to individuals with arthritis or rheumatism.
Under our facts, the subject Alpine ThermaGuard leg, arm and knee warmers are described as being “a unisex fabric accessory meant to be worn as a compression leg, [arm, and knee] covering for sports.” The ThermaGuard warmers are said to be designed to “provide a muscle-stimulating compression fit.” According to the requestor, “Garments made of ThermaGuard have high compression value to enhance the contour of the fit and provide muscle support for athletic activity.” By contrast, the Alpine ThermaGuard warmers are also marketed as providing cyclist with protection against cold weather, changes in temperature and are said to be water-repellant. Pactimo, Alpine Thermal Leg Warmers at https://www.pactimo.com/products/alpine-thermal-reflective-cycling-leg-warmers; https://www.pactimo.com/blogs/new-to-cycling/new-to-cycling-arm-leg-knee-warmers (last visited 08/04/2020). Similarly, according to the website, the Alpine ThermaGuard Warmers are intended to be worn with a cyclists’ uniform and in some cases have reflectors to provide visibility of the cyclist while worn at night. Id.
Based on the description provided and the information available on the requestor’s websites, the subject ThermaGuard Warmers have characteristics which are consistent with both a clothing accessory and a support or compression article. Yet, by definition, clothing accessory cannot be both an accessory and a support article. As we stated in HQ 963782 and HQ 088540, an accessory must be solely or principally used as an accessory. Moreover, an accessory is not an article that is essential in itself but adds to the beauty, convenience, or effectiveness of something else. A support or compression article is an essential article which provides support or compression to a joint or muscle. It follows that a support or compression article with the capacity to serve as a clothing accessory cannot by definition, be classified as an accessory because such an article is no longer being solely or principally used as an accessory. See HQ 963782 and HQ 088540.
By contrast, a support or compression article, with the capacity to act as an accessory has not altered its capacity to provide support or compression. Such an article may compliment a clothing outfit or add to its beauty without subjugating its effectiveness as a support article. In both HQ H281032 and HQ H262218, CBP held that a compression sleeve did not alter its fundamental purpose as a support article and remained classified in heading 6307, HTSUS, despite being used as a fashion statement or clothing accessory. The decision in HQ H281032 noted that the fact that the arm sleeve made a fashion statement did not diminish its fundamental purpose as a support or compression article.
Inasmuch as the subject ThermaGuard Warmers are not solely and principally used as an accessory, these articles cannot be classified under heading 6117, HTSUS. Instead, these articles are intended to be worn with a cyclist uniform, and they are articles which are designed and intended to be worn during physical, training or athletic activities (i.e., cycling). In this context, their function as a muscle-stimulating compression article supersedes their function as a clothing accessory. Moreover, because the ThermaGuard Warmers are dual-purpose articles with the capacity to serve both as an accessory and as a compression article negates their ability to serve solely and principally as a clothing accessory. Accordingly, and based on all the aforementioned, we find that the subject ThermaGuard Warmers are properly classified under heading 6307, HTSUS, as a support or compression article as described in EN 63.07 (Note (26)) and as defined in Note 1(b) to Chapter 90.
HOLDING:
By application of GRI 1 and Note 1(b) to Chapter 90, we find that the instant arm, knee and leg warmers provided for in heading 6307, HTSUS, specifically, under subheading 6307.90.9891, HTSUS (Annotated), which provides for: “Other made up articles, including dress patterns: Other: Other: Other: Other.” The 2020 column one, general rate of duty is 7% ad valorem.
You are to mail this decision to the requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely,
For Craig T. Clark, Director Commercial and Trade Facilitation Division