CLA-2 RR:CR:TE 965930 TF
John A. Bessich, Esq.
Follick & Bessich, P.C.
33 Walt Whitman Road, Suite 204,
Huntington Station, New York 11746
RE: Modification of HQ 955519; Classification of men’s anorak jackets and pants as separates; Imported in unequal numbers in separate shipments over time; Classification Based on the Intended Manner of Sale; Classification based on condition as imported; HQ 962125
Dear Mr. Bessich:
This letter is in reference to Headquarters Ruling Letter (HQ) 955519, dated April 15, 1994, which decided Protest Number 1803-92-100022, dated March 27, 1992, which was initiated by you concerning the classification of certain merchandise as jackets and pants as opposed to as track suits.
In HQ 955519, one entry of separates which contained an uneven number of men’s anorak jackets and pants, designated as style 2204J (200) and style 2204P (1576) was classified separately as jackets and pants by Customs. Upon review, the Bureau of Customs and Border Protection has determined that entry at issue was erroneously classified based on the intended manner of sale as represented by the importer, rather than the condition of the merchandise as imported.
We have reviewed the classification decision with regard to the respective entry referenced above and determined that the conclusion in HQ 955519 concerning that entry was incorrect. Although, a final determination of a protest, pursuant to Customs Regulations, cannot be modified or revoked as it is applicable only to the entry protested, this ruling serves to change the legal principle as applied to the one entry identified in HQ 955519. Further, this modification decision will be applicable to any unliquidated entries or future importations of similar merchandise.
Pursuant to section 625(c), Tariff Act of 1930, as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993) notice of the proposed modification of HQ 955519 dated April 15, 1994, was published on July 2, 2003, in Vol. 37, No. 27 of the CUSTOMS BULLETIN. No comments were received in response to this notice.
FACTS:
The entry at issue was composed of an uneven number of jackets and pants (200 jackets, 1576 pants), designated as styles 2204J (200) and style 2204P (1576).
The facts of HQ 955519 describes the merchandise as follows:
The jacket is constructed of a 100 percent nylon woven fabric outershell, a 65 percent polyester/35 percent cotton knit jersey fabric lining in the body of the garment, and a 100 percent nylon woven fabric lining in the arms. The garment features long sleeves with elasticized cuffs, a 2-1/2 inch wide elasticized waistband, a full frontal opening secured by a zipper closure which extends to the end of the collar, a stand-up collar, and two front pockets at the waist.
The pants of style 2204 are constructed of a 100 percent nylon woven fabric outershell, a 65 percent polyester/35 percent cotton knit jersey fabric lining for the torso portion of the pants extending slightly down the legs portion, and a 100 percent nylon woven fabric lining the remaining legs portion of the pants. The pants feature an elasticized waistband with an enclosed drawstring for tightening, a zippered fly that does not extend through the waistband, and elasticized ankle cuffs with side zippers which extend about 9 inches up the outside of the legs.
The garments are color coordinated and each feature matching embroidered logos of a major league sports franchise.
The entry at issue was the subject of HQ 955519, dated April 15, 1994, which was an Application for Further Review of Protest No. 1803-92-100022 and 1803-92-100011. It was also the subject of two previous pre-classification rulings—PC 868293 of November 26, 1991, and PC 873396 of May 4, 1992.
PC 868293 classified the jacket and pants (designated as style 2204) as track suits components in subheadings 6211.33.0030, HTSUSA, and 6211.33.0035, HTSUSA); and if imported separately as water resistant garments in subheadings 6201.93.3000, HTSUSA, and 6203.43.3500, HTSUSA. In PC 873396, Customs classified the goods in subheadings 6201.93.3000, HTSUSA, and 6203.43.3500, HTSUSA, respectively. PC 873396 indicated the garments were imported separately.
In HQ 955519, Customs denied the protest and classified the entry at issue based upon the intent of the importer in accordance with the pre-classification ruling, which was as separates.
ISSUE: What is the proper classification of the merchandise within the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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 GRI 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 GRI.
Woven track suits are provided eo nomine in heading 6211, HTSUSA. EN 62.11 states, in pertinent part, that “the provisions of the Explanatory Note to heading 61.12 concerning track suits…and of the Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading.” We refer to EN 61.12 which describes track suits as consisting of two garments, namely:
- A garment meant to cover the upper part of the body down to or slightly below the waist. It has long sleeves, with ribbed or elasticated bands, zip fasteners or other tightening elements at the cuffs. Similar tightening elements, including drawstrings, are generally to be found at the bottom of this garment. When it has a partial or complete opening at the front, it is generally fastened by means of a slide fastener (zipper). It may or may not be fitted with a hood, a collar and pockets.
- A second garment (a pair of trousers) which may be either close or loose fitting, with or without pockets, with an elasticated waistband, drawstring or other means of tightening at the waist, with no opening at the waist and therefore no buttons or other fastening system. However, such trousers may be fitted with ribbed or elasticated bands, slide fasteners (zippers) or other tightening elements at the bottom of the trouser-legs which generally go down to ankle level. They may or may not have footstraps.
Track suits are classifiable in heading 6211 based on GRI 1. As such, track suit components that form sets are not required to be “put up for retail sale” under GRI 3(b). In order for the subject track suit components to be classifiable within heading 6211, HTSUSA, as track suits at the time of importation, they should be packed in the same shipment at the time of importation, but not necessarily on the same hanger or in the same container. See Headquarters Ruling (HQ) 962125, dated May 5, 2000, referencing the following: Headquarters Memorandum 085944 PR, dated May 10, 1991; HQ 088423, dated May 20, 1991; HQ 952584, dated December 8, 1992; HQ 952907, dated January 29, 1993; HQ 952704, dated February 1, 1993; HQ 953231, dated May 12, 1993; HQ 954270, dated August 17, 1993; HQ 955519, dated April 15, 1994; HQ 956298, dated March 9, 1995.
Further, we refer you to HQ 962125, dated May 5, 2000, which is listed above. In HQ 962125, Customs expressed the view that classification is based on the merchandise’s condition as imported rather than the intent of the importer. Id. (clarifying that matching suit jackets and bottoms are classifiable as suits based on their condition as imported if they are imported in equal numbers in the same size range and meet the chapter note definition of suits.)
This ruling serves to apply HQ 962125, by determining that the subject track suit components are classifiable within heading 6211 (based on their condition as imported), if they are imported together in equal quantities that are matched by size, and if they are constructed and designed to be used exclusively or mainly for athletic activities.
In HQ 955519, the merchandise was entered in four separate entries spanning a time period of approximately six weeks. Of those four separate entries, one entry contained 200 jackets and 1576 pairs of trousers that were entered in the same shipment and classified as separates. We find 200 jackets and 200 pairs of trousers to be classified as track suit components which are provided eo nomine in heading 6211, HTSUSA. For this one entry, we find the equal number of trousers and jackets are classifiable as track suits with the remaining trousers that do not have matching jackets to be separately classifiable.
We are modifying HQ 955519 in part with regard to the one entry of unequal number of pants and jackets and we are classifying the one entry at issue based on its condition as follows:
200 of the subject trousers are classifiable in subheading 6211.33.0030, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys: Of man-made fibers: Track suits: Trousers.”
200 of the subject jackets are classified in subheading 6211.33.0035, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys: Of man-made fibers: Track suits: Other.”
The remaining trousers are classifiable as originally liquidated, which is in subheading 6203.43.4010, HTSUSA, which provides for “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: Other: Trousers and breeches: Men’s.”
For further details, we refer you to HQ 962125, which is enclosed.
HOLDING:
With respect to the one entry which contained an uneven number of jackets and pants (200 jackets, 1576 pants), HQ 955519, dated April 15, 1994, is hereby modified.
The merchandise presented in the entry is classifiable as:
200 of the subject trousers are classifiable in subheading 6211.33.0030, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys: Of man-made fibers: Track suits: Trousers.”
200 of the subject jackets are classified in subheading 6211.33.0035, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys: Of man-made fibers: Track suits: Other.”
The remaining trousers are classifiable as originally liquidated, which is in subheading 6203.43.4010, HTSUSA, which provides for “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: Other: Trousers and breeches: Men’s.”
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division