CLA-2: CO:R:C:T 956298 OR
District Director of Customs
33 New Montgomery Street
San Francisco, CA. 94105-4510
RE: Further Review of Protest No. 2809-93-102031, Concerning the
Tariff Status of Track Suit Components Invoiced and Packaged
Separately
Dear Sir:
This concerns the above referenced protest. Further review
was requested by the protestant and granted by your office. Our
decision on the matter follows.
FACTS:
The merchandise in question consists of jackets and pants.
When imported, 2880 warm up pants were packed separately from
5040 warm up jackets. Separate entry summaries were filed for
each type of garment. The importer states that this was the
result of an inadvertent error on the part of the importer's
broker. Although the protest mentions samples, no samples were
received in this office. For the purposes of this ruling, we
will assume that the subject garments have all the
characteristics associated with track suits.
ISSUE:
All the goods were liquidated as entered, the pants under
the provision for men's trousers of synthetic fibers, in
subheading 6203.43.4010, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), with duty at the rate of 29.5 percent
ad valorem, and the jackets under the provision for men's
anoraks, windbreakers, and similar garments, of synthetic fibers,
in subheading 6201.93.3511, HTSUSA, with duty at the rate of 29.3
percent ad valorem. The importer claims that all the pants (2880 pairs) should
have been classified with an equal number (2880) of the jackets
as track suits--the jackets in subheading 6211.43.0050, HTSUSA,
and the pants in 6211.43.0040. The duty applicable to both pants
and jackets is 16.9 percent ad valorem. Since those two tariff
provisions are for women's and girls' track suits and the
documentation refers to the garments as men's and boys', we
assume that the protestant meant subheadings 6211.33.0050 and
6211.33.0040, respectively. In this instance, the rate of duty
is the same.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. It appears that GRI 1
governs the classification of the subject merchandise.
It is a cardinal rule of Customs law that goods are
classified according to their condition at the time of
importation.
Prior to January 1, 1989, under the Tariff Schedules of the
United States Annotated (TSUSA), track suit components imported
in the same shipment, invoiced and packaged separately, were
classified under the legal theory of "entireties" as track suits
unless the components were intended for sale as separates.
Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D.
41232 (1925); James G. Wiley v. United States, 56 Cust. Ct. 331,
C.D. 2645 (1966). Therefore, Customs was required to determine
how the garments were merchandised.
Under the HTSUSA, the judicially created principle of
"entireties"which existed under the TSUSA , as it relates to
garments, is specifically forbidden by Note 13 to Section XI,
HTSUSA, which provides:
Unless the context requires otherwise, textile garments
of different headings are to be classified in their own
headings even if put in up sets for retail sale.
However, since there exists headings specifically providing
for track suits, two piece garments sets which are determined to
be track suits are classifiable pursuant to GRI 1 and are not
subject to the requirements of Note 13. Therefore, track suitsare not required to be packaged together at the time of
importation, or even in the same container, in order to be
classified together under a heading or subheading which provides
for track suits.
Where sets of garments are not packed together in such a
manner that they are readily identifiable as track suits at the
time of importation, the classification of those garments depends
on the intent of importer. As Customs stated in Customs
Headquarters Ruling (HQ) 088423, dated May 20, 1991:
If, at the time of importation, the importer has bona
fide intention to sell the suit components as suits, as
evidenced by the documentation in the entry package,
then the merchandise, in the absence of evidence to the
contrary, is classifiable as suits. If, at the time of
importation, the importer has the bona fide intention
to sell the suit components separately, as evidenced by
the documentation in the entry package, then the
merchandise, in the absence of evidence to the
contrary, is classified as separates.
In the instant circumstance, while the garments in question
physically may qualify as track suits, they were packaged
separately, invoiced separately, and entered by the importer's
agent separately. The only evidence submitted to Customs that
the 2880 pants and 2880 jackets will be marketed as track suits
and not as separates are statements in the protest to that
effect. Protestant has furnished a portion of a catalogue
showing the warm-up jacket and warm-up pants pictured on the same
page. The jackets are stated to come in four different color
combinations, each one having its own separate style or order
number. The pants also stated to come in the same four color
combinations and, as with the jackets, each has its own style or
order number. There is nothing on the submitted page which
indicates that the pants and jackets are sold together as "track
suits". Accordingly, the information furnished is insufficient
to show that the importer intended at the time of importation to
merchandise the 2880 pants with 2880 of the jackets as track
suits.
HOLDING:
All the entry documents indicate that the garments were
imported, and intended to be sold, as separates and there is no
adequate information or evidence to indicate a contrary intent.
Therefore, the merchandise was properly classified as separates
and not as track suits. Accordingly, the protest should be
denied in full.
In accordance with section 3A(11)(b) of Customs Directive
Number 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, this decision should be attached to the
Customs Form 19, Notice of Action, and furnished to the
protestant no later than 60 days from the date of this letter.
On that date the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the
Customs Ruling Module in ACS and to the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division