#  HQ 964319

July 7, 2000

CLA-2 RR:CR:TE 964319 mbg

CATEGORY: Classification

TARIFF NO.: 6117.10.2010

Ms. Stacy Haines

Wal\*Mart Stores, Inc.

702 SW 8^th^ Street

Bentonville, AR 72716-8023

RE: Tariff Classification of Knitted Capelet Accessory Made in Taiwan;

Revocation of NY F86764

Dear Ms. Haines:

On June 27, 2000, Customs issued New York Ruling Letter ("NY") F86764 to
your company, Wal\*Mart Stores, Inc., regarding the tariff
classification of a women's knitted capelet. The capelet was originally
classified as a women's knitted other garment under subheading
6114.30.3070 of the Harmonized Tariff Schedule Annotated ("HTSUSA").
Upon review, Customs has determined that the NY ruling letter which was
issued to you concerning the subject merchandise was inconsistent with
Headquarters Ruling Letter ("HQ") 963859, dated June 9, 2000. The
correct classification for the product should be under subheading
6117.10.2010, HTSUSA, based on classification as a knitted accessory. NY
F86764 is hereby revoked for the reasons set forth below.

FACTS:

The submitted sample, Style #9Y173, is a knitted poncho-like article
designed to be worn by women. The merchandise is composed of 70 percent
acrylic and 30 percent wool. The item has no sleeves or pockets, a wide
neckline, and a fringed edge bottom. Since the merchandise is
manufactured unsized, the amount of coverage provided will vary
depending on the size of the woman wearing the article; however, the
article is designed to provide coverage to the shoulders, upper back and
chest area as well as the upper arms, but does not extend to the abdomen
area or waist. It is designed to be worn over other outerwear such as a
blouse or shirt.

ISSUE:

Whether the subject merchandise is properly classified under heading
6102, HTSUSA, providing for capes, cloaks and similar articles, or
whether the appropriate heading is 6117, HTSUSA, as a knitted clothing
accessory, or, in the alternative, under heading 6114, HTSUSA, as an
other knit garment?

LAW AND ANALYSIS:

Classification under the HTSUSA 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 may then be applied. The Explanatory Notes (EN) to the
Harmonized Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance in
understanding the scope of the headings and GRIs.

There are three competing headings under the HTSUSA which must be
considered for classification of the merchandise under consideration:
heading 6102 provides for *inter alia* women's knitted or crocheted
coats, capes, windbreakers and similar articles; heading 6114, provides
for other knitted or crocheted garments; and heading 6117, provides for
other knitted or crocheted clothing accessories.

Determination of the HTSUSA classification of the subject merchandise
requires an understanding of terminology which is germane to the issue
and utilized by the HTSUSA. We note the following definitions:

> **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]{.smallcaps}
> 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).]{.smallcaps}
>
> **Capelet**- any small cape. [Dictionary of Fashion, Charlotte Mankey
> Calasibetta 90 (1998).]{.smallcaps}
>
> **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.]{.smallcaps}

Style #9Y173 is typical of a new line of items which are said to be the
hot new fashion item for Fall 2000; however, the merchandise is not
typical of those items to which it has been likened such as a poncho,
cape or shawl. The merchandise under consideration is styled in such a
way that it possesses at least one feature of each of the aforementioned
items. Style #9Y173 is pulled over the head like a poncho, yet the
length is not to or below the waist as is the length in a typical
poncho. Much like a cape or poncho, the item also has no arms or
sleeves; yet it is not intended to be loose fitting as it is cut to be
snug around the shoulders. In addition, 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. However, upon extensive research, Customs has
determined that the appropriate term for this merchandise is that of
"capelet" which is not defined in the HTSUSA or EN.

In applying the rule of *ejusdem generis* to determine whether an item
is embraced within a particular class, the courts have looked to the
articles enumerated within that class to ascertain the characteristics
they have in common. [Kotake Co., Ltd. v. United States]{.underline}, 58
Cust. Ct. 196, C.D. 2934 (1967). The class of items classified within
heading 6102 is that typical of outer wear such as coats, jackets, and
similar articles which provide protection from the weather.

The EN to heading 6102, HTSUSA, state that the provisions of the EN to
heading 6101, HTSUSA, apply *mutatis mutandis* to the articles of the
heading. 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 specifically
include capes and ponchos within this heading. The subject merchandise
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.

Customs views the length of a garment to be sometimes an influential
factor in determining how a garment is classified. For instance, if the
subject merchandise reached to at least the waist, the classification
would not be an issue; most likely all concerned would consider the
merchandise to be a poncho within heading 6102, HTSUSA. However, this
item's short length in conjunction with the lack of protection against
the weather precludes classification in heading 6102, HTSUSA.

Therefore, the next issue for determination is whether the capelet
should be considered a garment of heading 6114, HTSUSA, or an accessory
of heading 6117, HTSUSA. The EN to heading 6114, HTSUSA, state the
"heading covers knitted or crocheted garments which are not included
more specifically in the preceding headings of th\[e\] Chapter." While
this heading is a basket provision, the garments classifiable in heading
6114 normally are those garments which either provide a greater degree
of coverage to the wearer than the subject capelet or could be worn
without any other articles of clothing.

The EN to heading 6117, HTSUSA, state that "the heading covers, *inter
alia,* shawls, scarves, mufflers, mantillas, veils, *and the like*."
(emphasis added.) Although the terms set forth in heading 6117, i.e.
shawls, scarves, mantillas, and veils, are not defined in the EN to
heading 6117, HTSUSA, we note that these same terms are defined in the
EN to heading 6214, HTSUSA. The EN to heading 6214, HTSUSA, states in
relevant part:

> \(1\) **Shawls.** These are usually square, triangular or circular,
> and large enough to cover the head and shoulders.
>
> \(2\) **Scarves and mufflers.** These are usually square or
> rectangular and are normally worn around the neck.
>
> \(3\) **Mantillas.** These are kinds of light shawls or scarves,
> usually of lace, worn by women over the head and shoulders.

The EN further provides that "the *edges of these articles are usually*
hemmed, rolled, bordered or *fringed*." (emphasis added.)

In applying the rule of *ejusdem generis* to determine whether the
capelet is embraced within heading 6117, HTSUSA, Customs has looked at
the common characteristics of the capelet and the aforementioned
articles. ([See]{.underline} [Kotake]{.underline}, 58 Cust. Ct. 196,
C.D. 2934.) Style #9Y173 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. The new fashion

trends have dictated that Style #9Y173 resemble a pull-over poncho in
appearance yet resemble a shawl in length and the amount of elemental
protection afforded to the wearer. As such, classification as an
accessory in heading 6117, HTSUSA, is appropriate.

While the subject capelet is not *eo nomine* provided for within heading
6117, HTSUSA, the heading does allow for accessories which have a
likeness to the articles which are specifically named in the heading.
Customs considers the subject capelet to be within the purview of ". . .
*and the like*" of subheading 6117.10, HTSUSA. (emphasis added).

Finally, in past rulings Customs has stated that the crucial factor in
the classification of merchandise is the merchandise itself. As stated
by the court in [Mast Industries, Inc. v. United States]{.underline}, 9
Ct. Int'l Trade 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1,
1986), "the merchandise itself may be strong evidence of use". However,
when presented with articles which are ambiguous in appearance, Customs
will look to other factors such as environment of sale, advertising and
marketing, recognition in the trade of virtually identical merchandise,
and documentation incidental to the purchase and sale of the
merchandise. It should be noted that Customs considers these factors in
totality and no single factor is determinative of classification as each
of these factors viewed alone may be flawed. Customs has been informed
that other merchandise identical in function and design currently being
sold in retail stores, is displayed in the accessory departments.

HOLDING:

NY F86764 is hereby revoked.

The capelet is properly classified under subheading 6117.10.2010,
HTSUSA, which provides for "Other made up clothing accessories, knitted
or crocheted; knitted or crocheted parts of garments or of clothing
accessories: Shawls, scarves, mufflers, mantillas, veils and the like:
Of man-made fibers: Containing 23 percent or more by weight of wool or
fine animal hair." The capelet is dutiable at the general column one
rate of 11.6 percent *ad valorem*. The textile restraint category is
459.

The designated textile and apparel category may be subdivided into
parts. If so, visa and quota requirements applicable to the subject
merchandise may be affected. Since part categories are the result of
international bilateral agreements which are subject to frequent
renegotiations and changes, to obtain the most current information
available, we suggest that you check, close to time of shipment, *The
Status Report on Current Import Quotas (Restraint Levels)*, an internal
issuance of the U.S. Customs Service, which is available for inspection
at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth
and tenth digits of the classification ) and the restraint (quota/visa)
categories, you should contact your local Customs office prior to
importation of this merchandise to determine the current status of any
import restraints or requirements.

Sincerely,

John Durant, Director

Commercial Rulings Division