Application for Further Review of Protest No. 1704-14-100042; Shirt and pants

HQ H254677 May 16, 2017 CLA-2 OT:RR:CTF:TCM H254677 PJG CATEGORY: Classification TARIFF NO.: 6203.43.40; 6205.30.20 Port Director U.S. Customs and Border Protection 157 Tradeport Drive Atlanta, Georgia 30354 ATTN: Jeannelle Brooks, Senior Import Specialist RE: Application for Further Review of Protest No. 1704-14-100042; Shirt and pants Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1704-14-100042 dated January 21, 2014 filed by the Law Offices of Jon P. Yormick Co. LPA on behalf of Euclid Garment Manufacturing (“Euclid” or “Protestant”) concerning the tariff classification of an upper and lower body garment under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: This AFR concerns the classification of an upper body garment, which is identified as style number 30867, and a lower body garment, which is identified as style number 30886. Both items are constructed of 100% polyester woven fabric. The upper body garment is a pullover with a round neckline, partial front opening secured by three left over right snap closures, long sleeves with rib knit cuffs, and a hemmed bottom. The lower body garment is designed to be pulled-on and features an elasticized waist and an elasticized hemmed bottom with snap closures for tightening. The decision protested is the tariff classification of these two garments, which were entered in one entry on June 24, 2012. The Protestant filed a Post Entry Amendment (“PEA”) claiming that the merchandise was classified under subheading 6211.43.0091, HTSUSA, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of man-made fibers: Other.” On June 5, 2013, U.S. Customs and Border Protection (“CBP”) issued a Notice of Action (CBP Form 29) denying the PEA and subsequently, on July 26, 2013, liquidated the entry for the upper body garment line item under subheading 6206.40.30, HTSUS, which provides for “Women’s or girls’ blouses, shirts and shirt-blouses: Of man-made fibers: Other: Other” and liquidated the entry for the lower body garment line item under subheading 6204.63.35, HTSUS, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other: Other.” ISSUE: What is the proper classification of the upper and lower body garments under the HTSUS? 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 on January 21, 2014, within 180 days of liquidation. (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. 1704-14-100042 was properly accorded to Protestant pursuant to 19 CFR §§ 174.24 and 174.25. Specifically, the Protestant alleges that the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise under 19 CFR § 174.24(a). Specifically, Protestant alleges that the action of the Port is inconsistent with the law and also inconsistent with New York Ruling Letter (“NY”) N227556, dated August 23, 2012, NY N214496, dated May 18, 2012, Headquarters Ruling Letter (“HQ”) H060003, dated April 19, 2010, NY N020208, dated December 17, 2007, NY L85779, dated July 15, 2005, NY K89097, dated October 7, 2004, HQ 967039, dated September 10, 2004, NY K87322, dated July 20, 2004, HQ 966234, dated September 2, 2003, HQ 964962, dated September 25, 2002, HQ 964444, dated December 18, 2001, NY G81834, dated September 28, 2000, HQ 961826, dated February 2, 1999, and HQ 959136, dated November 27, 1996. Protestant also submitted a sample with its protest that we have reviewed in our assessment of the AFR. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). 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 2012 HTSUS provisions under consideration are as follows: 6203 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): 6204 Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts: 6205 Men’s or boys’ shirts: 6206 Women’s or girls’ blouses, shirts and shirt-blouses: 6211 Track suits, ski-suits and swimwear; other garments: Note 8 to Chapter 62, provides as follows: Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes. Garments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments. 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 61.14 states, in pertinent part: This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.   The heading includes, inter alia :   (1)   Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc. The EN to 62.03 states, in pertinent part: The provisions of the Explanatory Note to heading 61.03 apply, mutatis mutandis, to the articles of this heading. The EN to 62.05 states, in pertinent part: With the exception of nightshirts, singlets and other vests of heading 62.07, this heading covers shirts not knitted or crocheted for men or boys including shirts with detachable collars, dress shirts, sports shirts and leisure shirts. The EN to 62.06 states, in pertinent part: This heading covers the group of women’s or girls’ clothing, not knitted or crocheted, which comprises blouses, shirts and shirtblouses.   This heading does not cover garments with pockets below the waist or with a ribbed waistband or other means of tightening at the bottom of the garment. Furthermore, the heading does not include :   (a)   Singlets or other vests (heading 62.08). (b)   Garments made up of fabrics of heading 56.02, 56.03, 59.03, 59.06 or 59.07 (heading 62.10). (c)   Smocks or similar protective garments of heading 62.11. The EN to 62.11 states, in pertinent part: The provisions of the Explanatory Note to heading 61.12 concerning track suits, ski suits and swimwear and of the Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading. However, the track suits of this heading may be lined. The Protestant argues that the upper and lower body garments, which it refers to as “modesty shirts and pants,” should be classified in heading 6211, HTSUS, as other garments, because they are not describable as “scrubs” and therefore, are not classifiable in heading 6204, HTSUS and 6206, HTSUS. The Protestant also argues that CBP should not have based its classification decision on the description of the merchandise as “scrubs” on Euclid’s company website, but instead, should have requested and examined a sample of the garments before responding to the PEA. The Protestant states as follows: Euclid’s website depicting the subject modesty shirts and pants plainly shows that the garments at issue are not designed for use by surgeons performing operations. To the contrary, … the imported modesty shirts and pants have special features indicating that they are not designed as protective garments for hospitals, medical clinics or even a physician’s office; instead the modesty garments imported by Euclid in the instant Protest are designed for, marketed to, and worn by personnel in laboratories and other cleanroom environments, such as those found in the semiconductor, electronics, and pharmaceuticals industries. The Protestant further alleges that the subject “modesty garments have special features indicating that they are designed as protective garments, but not for use in an operating room, hospitals, or other medical facilities.” Specifically, the Protestant states that these special features on the upper body garment consist of “a bound round neck collar, long sleeves with elastic cuffs, a lined placket front closure with three (3) snaps” and safety stitching throughout the garment. With regard to the lower body garments, the Protestant states that the special features consist of “a full elastic waist and cuffs with both elastic and snaps for adjustment” and safety stitching throughout the garment. Protestant asserts that these “design features prevent debris, dust, and skin particles from contaminating the work environment in which the wearer is located, in addition to a coverall worn as outerwear.” Heading 6211, HTSUS, provides, in relevant part, for “other garments.” EN 62.11 indicates that EN 61.14 concerning other garments apply, mutatis mutandis, to the articles of heading 6211, HTSUS. EN 61.14 provides that the “heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of” Chapter 61. In applying this language to the articles of heading 6211, HTSUS, we conclude that heading 6211, HTSUS, is a “basket” provision that covers garments, which are not knitted or crocheted, and are not included more specifically in the preceding headings of Chapter 62. According to the Court of International Trade, “[c]lassification of imported merchandise in a basket provision is appropriate only when there is no tariff category that covers the merchandise more specifically.” Apex Universal, Inc. v. United States, 22 Ct. Int’l Trade 465, 16 (1998). We agree with the Protestant that the subject garments are not scrubs because they do not have any of the features that we have previously identified for scrubs. In HQ 967039, we noted that “the term ‘scrubs’ is defined as a ‘protective garment worn by surgeons during operations.’” (citing to Hyperdictionary at www.hyperdictionary.com) Moreover, in HQ 967039, we identified the following features in scrubs: “they are usually unisex, reversible, and the bottoms have a pocket on the rear.” We also stated that scrub bottoms “have sewn pockets on both sides of the garment, which makes the pants reversible.” We note that the subject lower body garment does not have a pocket, neither the upper nor the lower body garment is reversible, and the upper body garment has a left over right snap closure, which indicates that it is a men’s or boys’ garment in accordance with Note 8 to Chapter 62. We disagree with the Protestant that the merchandise is protective clothing. As we noted in HQ 964962, “‘other protective clothing’ classifiable in heading 6211, HTSUS, as ‘other garments’ are garments ‘of a kind that have special design features or unique properties that distinguish them from other garments that are not used for protective purposes.’” (quoting HQ 959136 (Nov. 27, 1996)). The Protestant claims that the special design features in the upper body garment are the “bound round neck collar, long sleeves with elastic cuffs, a lined placket front closure with three (3) snaps” and the safety stitching used throughout the garment” and in the lower body garment the special features are the “full elastic waist and cuffs with both elastic and snaps for adjustment” and the safety stitching used throughout the garment. We do not find that these identified features are unique properties that distinguish the subject garments from shirts or trousers. For example, two of the identified features, specifically snaps and elastic cuffs, appear on garments classified as shirts or trousers. See e.g., NY N004134 (Dec. 11, 2006) (classified a girl’s denim cotton short sleeve shirt with a full front opening that fastens with four metal snaps under heading 6206, HTSUS); NY N017533 (Oct. 15, 2007) (classified ski/snowboard pants with hidden elasticized leg sleeves with side openings secured by a hook and loop fastener and a snap closure at the ankle in heading 6204, HTSUS); NY 801615 (Oct. 6, 1994) (classified pants with elastic cuffs in heading 6204, HTSUS); and HQ 952927 (Jan. 27, 1993) (classified the shirt featuring elastic cuffs in heading 6206, HTSUS). Moreover, the protective garments classified in heading 6211, HTSUS, in each of the rulings cited by the Protestant are not comparable to the instant garments because the merchandise in the cited rulings were not provided for more specifically in a preceding heading of Chapter 62. See e.g., NY N227556 (the woman’s jumpsuit, stated to be “designed for patients who suffer from mental impairments and are prone to undress themselves” included features such as “a rear closure with five metal snaps and two plastic buckles” and the men’s one-piece garment included features such as “an opening at the back extending from the neckline to below the waist; six metal snap closures at the rear opening; a plastic buckle at the rear neckline and at the rear waist”); NY N020208 (the beekeeper coverall and the beekeeper jacket included a wide-brimmed hood with spring steel band rings, a veil, heavy duty zipper attaching the hood to the rest of the garment, a fabric throat cover, “heavy duty elastic wrist cuffs with elastic thumb grips”, and heavy duty elastic leg cuffs and heavy duty elastic waist); NY L85779 (the features of the Painter’s Protection Suit included that it was a coverall with long sleeves, “wrist tighteners, full front zipper closure, elasticized ankles, … and a zippered hood”); NY K87322 (the Nuclear Rain Wear Coverall included features such as “2% carbon core filament fabric”, “double thickness stand up collar … , specially constructed clear patch pocket, …. high barrier protection and a 99.9% spray repellency rating”); NY G81834 (the features in the electrostatic discharge cleanroom garment included “an antistatic component”, “conductors in all seams”, and complete groundability); and HQ 961826 (the feature in the full bib gardening apron was that it “covers the wearer from the neck to just above the knees and protects the wearer’s clothing from dirt, water, etc., while performing gardening-type tasks”). Also, as discussed above, the upper body garment has a left over right snap closure, which indicates that it is a men’s or boys’ garment in accordance with Note 8 to Chapter 62. We note that the lower body garment is a men’s or boy’s garment on the basis of the size specifications for the lower body garment provided on the Protestant’s website. Accordingly, we find that the subject lower body garment is described in heading 6203, HTSUS, and the upper body garment is described in heading 6205, HTSUS. Therefore, the upper and lower body garments are more specifically provided for elsewhere in Chapter 62, HTSUS, and consequently, are not classifiable in heading 6211, HTSUS. Specifically, the subject lower body garment is a men’s or boys’ trouser classified in subheading 6203.43.40, HTSUS, as “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other.” Since the upper body garment has a partial front opening secured by three left over right snap closures, it is regarded as a men’s or boys’ garment. See Note 8 to Chapter 62. Specifically, the subject upper body garment is classified in subheading 6205.30.20, HTSUS, which provides for “Men’s or boys’ shirts: Of man-made fibers: Other: Other.” HOLDING: Under the authority of GRIs 1 and 6, the lower body garment (style number 30886) is classified in subheading 6203.43.40, HTSUS, as “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other,” and the upper body garment (style number 30867) is classified in heading 6205, HTSUS, specifically, under subheading 6205.30.20, HTSUS, which provides for “Men’s or boys’ shirts: Of man-made fibers: Other: Other.” The 2012 column one, general rate of duty is 27.9% ad valorem and 25.9% ad valorem plus 29.1¢/kg, respectively. Duty rates are provided for convenience and are subject to change. You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, 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 re-liquidation 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 of 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 http://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