CLA-2 CO:R:C:T 955519 CMR
TARIFF NO: 6201.93.3510, 6203.43.4010
District Director
U.S. Customs Service
4430 E. Adamo
Suit 301
Tampa, Fla. 33605
RE: Application for Further Review of Protests Nos.
1803-92-100022 and 1803-93-100011; Requirement for AFR met at
time filed
Dear Ms. Zwicker:
This is in response to the above cited protests, filed by
Gibney, Anthony & Flaherty, on behalf of their client, against
the classification by the Area Port Director, Jacksonville,
Florida, of certain merchandise as jackets and pants as opposed
to as track suits. Although protestant received two pre-
classification rulings on the subject merchandise prior to
importation, protestant has met the requirements under 19 CFR
174.24(c). This provision provides that a protestant shall be
accorded further review when the decision against which the
protest is filed:
Involves matters previously ruled upon by the Commissioner
of Customs or his designee or by the Customs courts but
facts are alleged or legal arguments presented which were
not considered at the time of the original ruling.
Protestant has submitted legal arguments not addressed in
any previous Customs rulings regarding the classification of this
or similar merchandise. A sample of the merchandise at issue was
submitted.
FACTS:
The jacket of style 2204 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 -2-
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 jacket and pants are color coordinated and each feature
matching embroidered logos of a major league sports franchise.
Style 2204 was the subject of two pre-classification ruling
letters--PC 868293 of November 26, 1991, and PC 873396 of May 4,
1992. PC 868293 (1991) indicated the classification for the
jacket and pants of style 2204 as track suits components in
subheadings 6211.33.0030, HTSUSA, and 6211.33.0035, HTSUSA,
respectively (subject to duty at 17 percent ad valorem); but,
further indicated if imported separately, the classifications
would be subheadings 6201.93.3000, HTSUSA, and 6203.43.3500,
HTSUSA, respectively, as water resistant garments (subject to
duty at 7.6 percent ad valorem). In PC 873396 (1992),
classification for the jacket and pants of style 2204 is given as
subheadings 6201.93.3000, HTSUSA, and 6203.43.3500, HTSUSA,
respectively. This pre-classification ruling indicates that the
garments are imported separately.
The garments at issue were entered as separates in the
provision for water resistant garments, i.e, the jackets in
subheading 6201.93.3000, HTSUSA, and the pants in subheading
6203.43.3500, HTSUSA. The garments were entered in four separate
entries spanning a time period of approximately six weeks. Three
entries are the subject of protest #1803-92-100022, and one entry
is the subject of protest #1803-92-100011. Two entries contained
only jackets, style 2204J; one entry contained only pants, style
2204P; and one entry contained an uneven number of jackets and
pants, style 2204J (200) and style 2204P (1576).
The jackets and pants were liquidated as classified, in
subheading 6201.93.3510, HTSUSA, dutiable at 29.5 percent ad
valorem for the jackets, and in subheading 6203.43.4010, HTSUSA,
dutiable at 29.7 percent ad valorem for the pants. Customs
personnel determined the garments did not meet the water
resistance requirements of Additional U.S. Note 2, Chapter 62,
HTSUSA. -3-
ISSUE:
Are the jackets and pants of style 2204, entered in separate
shipments over a six week time span, classifiable as track suits
of heading 6211, HTSUSA?
Are the jackets and pants of style 2204, entered separately,
classifiable as track suits of heading 6211 by application of
General Rule of Interpretation 2?
LAW AND ANALYSIS:
As to the first issue, Customs has already addressed this
issue in Headquarters Ruling Letter (HRL) 954270 of August 17,
1993, addressed to Gibney, Anthony & Flaherty. Although the
ruling was issued to the firm on behalf of a different client,
counsel for protestant should be aware of this decision and
already have a copy. We are enclosing a copy, however, for your
reference.
HRL 954270 succinctly states Customs position in regard to
the classification of track suit components shipped separately on
different vessels, i.e., they are not classifiable as track
suits, but are classified as separates--jackets or pants. As
Customs has addressed this matter and the protestant does not
raise any new legal arguments which have not already been
addressed in HRL 954270, we will not entertain this issue
further.
The protestant does raise a matter not previously addressed,
i.e., whether by application of General Rule of Interpretation
(GRI) 2, the components of a track suit may be classified as
track suits based upon an analysis that they are "incomplete or
unfinished".
GRI 2 provides, in pertinent part:
(a) Any reference in a heading to an article shall be taken
to include a reference to that article incomplete or
unfinished, provided that, as presented, the incomplete or
unfinished article has the essential character of the
complete or finished article. It shall also be taken to
include a reference to that article complete or finished (or
failing to be classified as complete or finished by virtue
of this rule), presented unassembled or disassembled.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System, recognized as the official
interpretation of the tariff at the international level, defines
track suits at 61.12 (the Explanatory Notes of heading 6112 apply
mutatis mutandis, to heading 6211). -4-
Track suits, i.e., knitted articles consisting of two
pieces, not lined but sometimes with a raised inner surface
(nap) which, because of their general appearance and the
nature of the fabric, are clearly meant to be worn
exclusively or mainly in the pursuit of sporting activities.
Track suits consist 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 elasticized 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.
The definition of track suits consistently refers to two
garments. Protestant would have us view the single components,
i.e., the jackets and pants of style 2204, as "incomplete or
unfinished" track suits and by application of GRI 2(a), classify
these garments as track suits.
While the jackets and pants, if presented together at the
time of importation, would meet the above cited definition of
track suits, a track suit, by definition, consists of two
garments. The argument that the jackets and pants should be
viewed as "incomplete or unfinished" track suits when presented
separately at the time of importation is without merit. GRI 2(a)
states that the incomplete or unfinished article must have the
essential character of the complete or finished article. As
track suits by definition consist of two garments, one garment
cannot have the essential character of a track suit. In fact, in
regard to the individual components, the jacket has the essential
character of a jacket, and the pants have the essential character
of pants. It is only when they are combined that they may
possess the essential character of a track suit.
-5-
As to protestants specificity argument under GRI 3(a), we
believe it is sufficient to state that failure to meet the
definition of a track suit precludes classification as such in
heading 6211, and therefore, classification of the jackets in
heading 6201, as anoraks, windbreakers or similar articles, and
of the trousers in heading 6203 as trousers, are the most
specific headings among those which merit consideration.
In regard to the one entry which contained an uneven number
of jackets and pants (200 jackets, 1576 pants), we would not
agree that allowance should be made for classification of 200
tracksuits by matching the jackets with appropriate pants in this
shipment. This view is based upon the fact that the importer
received two pre-classification rulings indicating classification
of the merchandise imported separately, and the merchandise was
then indeed entered as separates. The earlier of the two
rulings, PC 868293 of November 26, 1991, does indicate a
classification for the goods imported together, but notes a
classification for separate importation.
Customs Service Decision 92-11, cited by protestant's
counsel, dealt with track suits in which equal numbers of jackets
and pants were separately packaged on the same ship and entered
on the same entry. In such a situation, the decision stated that
in absence of evidence to the contrary, Customs would look to the
bona fide intent of the importer in regard to the manner of sale
of the garments, i.e., as separates or as a set. This decision
merely attempted to ascertain the true "condition as imported" of
the merchandise at issue therein. It did not, by any means,
eliminate the principal of classification based upon condition as
imported.
In this situation, while protestant maintains that style
2204 was ordered, purchased and sold as a set, i.e., a track
suit, and has submitted documentation to that effect, it is our
view that the importer was well aware of the significance of the
"condition as imported" of the merchandise. As evidenced by
protestant's counsel's submissions, 9845 jackets and 11761 pants
were shipped. That is a difference of 1916 garments. Of the
four entries at issue, only one contained jackets and pants and
in vastly unequal numbers.
HOLDING:
Based upon the manner of entry of these garments and the
pre-classification rulings on style 2204, imported separately,
the protest should be denied in full. A copy of this decision
should be attached to the Customs Form 19 which is returned to
the protestant.
-6-
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division