CLA-2 RR:CR:TE 964962 jsj
6204.62.4020
Ms. Brenda A. Jacobs
Sidley Austin Brown & Wood, LLP
1501 K Street, N.W.
Washington, D.C. 20005
Re: Scrubs; Shirts; Pants; Classification; Subheadings 6206.30.3040 and 6204.62.4020, HTSUSA; Treatment; 19 U.S.C. 1625 (c)(2).
Dear Ms. Jacobs:
The purpose of this correspondence is to respond to your request dated February 14, 2001. The correspondence in issue requested, on the behalf of your client, Co-Expo Ltd., a binding classification ruling of the merchandise described as “scrubs.” A request for treatment of substantially similar transactions pursuant to 19 U.S.C. 1625 (c)(2) was subsequently received.
This ruling is being issued subsequent to the following: (1) A review of your submissions dated February 14, 2001, and May 30, 2001; (2) A telephone conference between a member of my staff, counsel for Co-Expo and Co-Expo’s Customs broker conducted on September 11, 2002, the topic of which was classification; and (3) An examination of the sample scrubs, both the top and pants.
FACTS
The articles in issue are “scrubs.” The scrubs consist of a top and a bottom made of a fifty-five (55) percent cotton – forty-five (45) percent polyester blend woven fabric. Customs is not advised of any coating, covering or unique fabric-making technique the result of which makes the fabric either resistant or impervious to fluids, particulate matter, bacteria or viral life.
The top is a short sleeve, reversible garment that has a breast pocket on the left side and features a “V” neck. It is loose fitting and designed to be worn as a “pull-over.”
Counsel for the importer advises Customs of the following regarding the scrub top: (1) The seams are “heavy-duty double needle-felled seams;” (2) The “V” neckline has a “one-inch wide self-fabric set into the front of the shirt by means of a single needle lockstitch;” (3) “Self-fabric bias bind[s] the back of the neck;” (4) The ends of the short sleeves are “bar tacked;” (5) The bottom hem of the scrub top is “single needle lockstitched hemmed and finished one-half inch wide with fold under;” and (6) The top has a “large strip of binding that is color-coded to make size identification easy.” Submission of Counsel, p. 1-2 (Feb. 14, 2001).
The pants are reversible garments with a rear hip pocket on the right side. The pants secure at the waist of the wearer by means of a drawstring.
Counsel for the importer advises Customs of the following regarding the scrub pants or bottoms: (1) The rear pocket “must measure 6 ½ inches wide by 6 ¼ inches deep, with a three-quarter inch hem;” (2) The “hem is single needle lockstiched with fold under;” (3) The drawstring tunnel is “one inch wide with a one-quarter inch turn under” and has a “one inch buttonhole” through which the drawstring exits that is “reinforced with 2-ply self-fabric good;” and (4) “The bindings and all seams are bartacked.” Submission of Counsel, supra. at p. 2.
Customs is advised that the Co-Expo scrubs are not put up for retail sale, but are sold exclusively in bulk to hospitals. Submission of Counsel, supra at p. 2.
ISSUE
What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described “scrub” tops and pants ?
Has Co-Expo Ltd. established a consistent pattern of classification decisions by the Customs Service of its scrubs in heading 6211, HTSUS, to substantiate a claim of treatment pursuant to 19 U.S.C. 1625 (c)(2) ?
LAW AND ANALYSIS
The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation.
General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).
The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 2, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).
Classification
Commencing classification of the scrub tops and pants, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 6206, HTSUS, provides for the classification of: “Women’s and girls’ blouses, shirts and shirt-blouses.” Shirts are not described in the tariff schedule section or chapter notes, but the Explanatory Notes and the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (Nov. 23, 1988) provide classification assistance.
The initial responsibility of the Customs Service is to examine the plain meaning of the statutory text. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (Ct. Int’l Trade 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (Ct. Int’l Trade 1994). If the plain language of the heading establishes the clear and unambiguous intent of Congress, the classification inquiry at the heading level is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F. 3rd 1375, 1379 (Fed. Cir. 1999). It is the decision of the Customs Service that the Explanatory Notes and the Guidelines assist in setting forth the common and popular understanding of the tariff term “shirt.”
The Explanatory Notes state that “[s]hirts…are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline.” General Explanatory Note, Chapter 62. The Guidelines, under the category designation “Blouses, shirts, and shirt-blouses nonknit, Women’s and Girls,’” describe the features of a shirt. The Guidelines state, in part, that “[a]lso included in the category of shirts [are] the feminine counterpart of men’s and boys’ shirts.” Men’s and boys’ shirts, pursuant to the Guidelines, are described, in pertinent part, as:
outer garments which extend from the neck and shoulder areas to or below the waist…have a full or partial front opening…are worn over underwear or the skin and are considered conventional attire indoors without other garments over them; they suffice the wearer except where circumstances dictate that a further degree of formality is required or where weather conditions necessitate additional protection.
The “scrub” top is a garment that extends from the neck and shoulder area to or below the waist. Co-Expo’s garment is worn over the skin of the wearer and is considered conventional attire indoors without other garments and outdoors depending on weather conditions. The scrub top in issue is the type of garment top commonly understood as a casual shirt and classified in heading 6206, HTSUS.
The Customs Service notes, in advance of further classifying the scrub top, the applicability of Chapter 62, Note 8, HTSUS. Note 8 provides:
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 the 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. Chapter 62, Note 8, HTSUS.
Although counsel for the importer asserts that the scrub top and pants are “unisex” clothing and “sized only in male sizes,” the scrubs cannot be identified as designed for either men or boys, or women or girls. Since the identity of the sex of the wearer cannot be established pursuant to Note 8 of Chapter 62, nor by an examination of the garments, the tariff schedule dictates that they be classified as “women’s or girls’” garments. The Co-Expo scrub top is, therefore, properly classified in heading 6206, HTSUS.
Continuing the classification of the Co-Expo scrub top, the top is classified in subheading 6206.30.3040, HTSUSA. Subheading 6206.30.3040, HTSUSA, provides for the classification of:
Women’s and girls’ blouses, shirts and shirt-blouses:
Of cotton:
Other,
Other:
6206.30.3040 Women’s
Commencing classification of the Co-Expo scrub pants, in accordance with the dictates of GRI 1, the Customs Service again examined the headings of the HTSUSA. Heading 6204, HTSUS, provides for the classification of:
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).
The garments enumerated in heading 6204, HTSUS, similar to shirts of heading 6206, HTSUS, are not described in the tariff schedule section or chapter notes, nor the Explanatory Notes. Customs will again turn to the Guidelines for assistance in classifying the Co-Expo scrub pants, particularly for guidance in determining the common and popular understanding of the tariff term “trousers.”
The Guidelines, under the category designation “Trousers, breeches and shorts, men’s and boys’, women’s and girls’” offers a description of “trousers.” Trousers, breeches and shorts are “outerwear garments with leg separations extending to the vicinity of the upper thigh or below.” The Guidelines indicate that they may be held up by various means and include “specialized versions of trousers and shorts such as riding breeches, jodhpurs, gaucho pants, knickers, jogging suits, and trousers with back bibs of whatever height.”
The scrub pants subject to this classification ruling letter meet the description of trousers in the Guidelines. The scrub pants or bottoms are outerwear that have leg separations. They are held up, in the instant case, by means of a drawstring. The scrub pants, in this regard, are similar to jogging suits, a specialized version of trousers, because many jogging suits employ drawstrings to secure the pants to the wearer.
The gender of the wearer of the scrub pants, similar to the scrub top, cannot be identified pursuant to the initial aspect of Chapter 62, Note 8. Since they cannot be identified as men’s or boys’, or women’s or girls’, the scrub pants are to be classified as women’s or girls’ garments. The Co-Expo scrub pants are, therefore, classified in heading 6204, HTSUS.
Continuing the classification of the Co-Expo scrub pants, the pants are classified in subheading 6204.62.4020, HTSUSA. Subheading 6204.62.4020, HTSUSA, provides for the classification of:
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 Cotton:
Other:
Other:
Other,
Trousers and breeches:
Women’s:
Other.
The Customs Service notes, with reference to the classification of both the scrub top and pants, the applicability of Section XI, Subheading Note (2)(A), HTSUS. Subheading Note (2)(A) provides that:
Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials.
Section Note (2) to Section XI provides, in pertinent part, that:
(A) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
The Co-Expo scrub top and pants are constructed of a woven fabric that is a blend of fifty-five (55) percent cotton and forty-five (45) percent polyester. The scrub tops and pants, for purposes of classification in Chapter 62, are considered as if they were made wholly of cotton since the cotton predominates by weight over the polyester, the only other textile material in the fabric.
Counsel for Co-Expo suggests to the Customs Service that the scrub top and pants are properly classified in heading 6211, HTSUS. Heading 6211, HTSUS, provides for: “Track suits, ski-suits and swimwear; other garments.” Counsel submits that the scrub top and pants are “other garments” of heading 6211, HTSUS, and directs Customs attention to the Explanatory Notes.
The Explanatory Notes, particularly EN 62.11, provides, in part, that “[t]he provisions of the Explanatory Notes…to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading.” Explanatory Note 61.14 provides, in part, that “[t]he heading includes inter alia: (1) Aprons, boiler suits (coveralls), smocks, and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc.” Counsel suggests that the instant scrubs are “other protective clothing” “for use in a hospital setting.” Submission of Counsel, supra. at p.2. The importer’s counsel further asserts that the scrubs are specifically “designed for use in the operating room and [are] worn to protect surgeons and other medical personnel from fluids, particles and bacteria during operating room procedures.” Submission of Counsel, supra. at p.2. Co-Expo further suggests to Customs that the special design features of the scrubs are heavy fabrics, reversibility, double needle felled seams, a neckline binding, drawstring closures that are color coded and “other features designed to ensure that protection is not compromised.” (Emphasis added). Submission of Counsel, supra. at p.3.
The Customs Service has previously concluded that “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.” HQ 959136 (Nov. 27, 1996). See also HQ 961826 (Feb. 2, 1999), HQ 959974 (April 7, 1997), HQ 957362 (Mar. 27, 1995), and HQ 084087 (Sept. 7, 1989). The Customs Service finds no special design features or unique properties in the Co-Expo scrub top and pants. The Co-Expo scrubs have no features or properties that distinguish them from any other shirt or pants properly classified in headings 6206 and 6204, HTSUS. A short sleeve scrub top with large a “V” neck and the loose fitting scrub pants suggest to Customs that protection of the wearer was not the design concern of the manufacturer. The scrubs are, rather, shirts and pants of a different style designed for comfort and durability. Customs ruling in this matter is consistent with HQ 959136 and HQ 084087, both addressing the classification of scrubs.
Counsel suggests that the attention paid by the manufacturer to the seams of both the top and the pants which allegedly “form a tight barrier resistant to fluids, particles and bacteria” is relevant to assessing the protective nature of the garments. Customs could accept this fact as significant if the only aspect of the garments that would come into contact with “fluids, particles and bacteria,” not to mention viral life, were the seams. Submission of Counsel, supra. at p.1. The Customs Service has been presented no information addressing the yarn count or how tight or loose the weave may be. Customs has no information suggesting that fluids, particles, bacteria or viral life cannot pass through the fabric, making the allegedly resistant seams of little consequence. Customs concludes that the durability of the seams is relevant to the durability and life of the garments, not its ability to prevent the intrusion of undesirable elements. Scrubs of this nature, sold in bulk to hospitals or rented to hospitals by laundry services, are intended to be used for a long time. The attention paid to the seams by the manufacture will extend the life of the top and pants, but does not offer protective benefit. The scrub top and pants do not have special protective features similar to those present in the surgical gown classified in HQ 560011 (Dec. 13, 1996) as “other protective clothing.”
Counsel for Co-Expo directed Customs attention to New York Ruling Letter 851355 (May 4, 1990) which classified a medical isolation gown in heading 6211, HTSUS. Counsel particularly notes that the fabric of the gown, a forty-five percent polyester – fifty-five percent cotton blend, is similar to the blend of the Co-Expo scrubs. Customs notes that although the article classified in NY 851355 was a medical gown and was classified in heading 6211, HTSUS, it was never designated as a “protective garment.” The medical gown in NY 851355 was classified in heading 6211, HTSUS, as an “other garment” because no other heading more specifically described the article. The gown, a garment with an open back, was not a shirt nor a pull-over and, therefore, was properly classified as an “other garment,” but not an other “protective” garment.
Treatment
The Customs Service, in order to substantiate a claim for treatment pursuant to 19 U.S.C. 1625 (c)(2), requires that the importer carry the burden of establishing that Customs extended a consistent pattern of classification decisions to identical or substantially identical transactions of the importer. The evidence, which is reviewed on a case-by-case basis, must include all relevant facts and entry information for two years prior to the date of the last liquidated entry subject to the importer’s claim. The entry information must contain: (1) A list of every liquidated entry of identical or substantially identical merchandise; (2) The entry number; (3) The port of entry; (4) The tariff classification under which the entries were liquidated; (5) The entered value; and (6) The volume of merchandise. The importer must specifically identify all entries that were examined by Customs. Customs must also be provided a statement from the importer or its designee confirming that there have been no entries through any port of identical or substantially identical merchandise classified under a tariff provision different from the provision claimed by the importer.
It is the determination of the Customs Service, at this point in time, that the information available does not establish a consistent pattern of Customs decisions involving the classification of Co-Expo’s scrubs. The importer’s claim of treatment is denied with the importer’s right to raise this issue again by means of a protest reserved.
HOLDING
The Co-Expo Ltd. scrub top is classified in subheading 6206.30.3040, Harmonized Tariff Schedule of the United States Annotated.
The General Column 1 Rate of Duty for subheading 6206.30.3040, HTSUS, is fifteen and six-tenths (15.6) percent, ad valorem.
The textile quota category for subheading 6206.30.3040, HTSUS, is category 341.
The Co-Expo Ltd. scrub pants are classified in subheading 6204.62.4020, Harmonized Tariff Schedule of the United States Annotated.
The General Column 1 Rate of Duty for subheading 6204.62.4020, HTSUS, is sixteen and eight-tenths (16.8) percent, ad valorem.
The textile quota category for subheading 6204.62.4020, HTSUS, is category 348.
The claim of Co-Expo Ltd. for treatment of identical or substantially identical transactions is denied. The denial of treatment is without prejudice to the importer’s right to seek subsequent administrative review through protest procedures.
The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels) an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at the local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division