CLA-2 RR:CR:TE 967339 TMF
Port Director
Port of Otay Mesa
9777 Via De La Amistad San Diego, CA 92154
RE: Classification of women’s upper body garment; Protest #2506-04-100047
Dear Sir or Madam:
This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 2506-04-100047, filed by the law firm of Stein Shostak, Shotak & O’Hara, LLP, on behalf of their client, Lee Thomas, Inc. Your office forwarded samples to this office for our review.
The protest and request for Application for Further Review (hereinafter “AFR”), which was timely filed on May 27, 2004, is against Customs and Border Protection’s (CBP) classification and liquidation of five entries containing women’s upper body garments. The liquidation dates range from February 27, 2004 to early May. CBP classified the merchandise in subheading 6110.30.3055, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) (2003), which provided for women’s or girls’ knitted or crocheted garments of man-made fibers, similar to sweaters, pullovers, sweatshirts and waistcoasts (vests).
Counsel for the protestant asserts that classification is proper in subheading 6102.30.2010, HTSUSA (2003), which provided for, among other things, women’s knitted or crocheted garments of man-made fibers, similar to overcoats, carcoats, or jackets. Counsel also suggested in the alternative, subheading 6112.12.0020, HTSUSA (2003), which provided for women’s or girls’ knitted or crocheted synthetic fiber track suit jackets.
Counsel asserts that review of the AFR is warranted pursuant to 19 C.F.R. §§174.24 and 174.25 on the basis that the port’s action is inconsistent with prior rulings and treatment by various ports with regard to substantially similar merchandise.
FACTS:
The garment, identified as style #6399, is made of 59 percent polyester, 35 percent cotton and 6 percent spandex finely knit fabric, features a full front zippered opening, a mock collar, raglan sleeves with hemmed openings and a hemmed bottom. Two additional samples were submitted: Style 6399 in a size medium; and style #6504, which was an example in the submitted exhibits presented.
Style 6399, according to counsel, weighs about 10 ounces. When fitted to a size 10 mannequin, this style does not exhibit any tightening at the sleeve ends, nor at the bottom of the garment.
Counsel believes that style 6399, is properly classified as a jacket of heading 6102 as it features French terry knit fabric which is napped on the inside and outside surfaces for greater warmth; a full frontal opening; long sleeves; heavier duty zippers with jacket-styled pulls; and a fabric weight of about ten ounces. To further support the claim for classification in heading 6102, counsel states that the goods are marketed and sold within the United States as jackets, and references the submitted commercial entry documents and purchase orders which describe the goods as jackets. However, we note the costing worksheet and assembly description invoices indicate conflicting classification of styles 6399 in subheadings 6110.30.3055 and 6112.12.0020.
In support of classification in heading 6102, counsel also states that the subject garments and similar jackets have been liquidated at other ports as jackets for the past two or three years
Counsel argues for alternate classification in heading 6112 by relying on an advisory opinion that was given by an import specialist at the Port of San Diego classifying a similar garment, identified as 6504, under heading 6112 as a tracksuit jacket.
ISSUE: What is the proper classification of the subject garments under the Harmonized Tariff Schedule of the United States Annotated?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation ("GRI"). 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.
The issue in the instant case is whether the submitted sample is properly classifiable as a jacket similar to a windbreaker in heading 6102, as a garment similar to a cardigan of heading 6110, or as part of a tracksuit in heading 6112, HTSUSA.
Heading 6102
Heading 6102, HTSUSA, provides, in pertinent part, for knitted or crocheted women’s windbreakers and similar articles, other than those of heading 6104. The Informed Compliance Publication (ICP) entitled Apparel Terminology under the HTSUS (January 2004) describes anoraks, windbreakers and similar articles of heading 6102 as garments “designed to be worn over another garment for protection against the elements.” It adds:
Jackets cover the upper body from the neck area to the waist area, but are generally less than mid-thigh length. They normally have a full front opening, although some jackets may have only a partial front opening. Jackets usually have long sleeves. Knit jackets (due to the particular character of knit fabric) generally have tightening elements at the cuffs and at the waist or bottom of the garment, although children’s garments or garments made of heavier material might not need these tightening elements. This term excludes knit garments that fail to qualify as jackets because they do not provide sufficient protection against the elements. Such garments, if they have full-front openings, may be considered cardigans of heading 6110 (other).
In the instant case, style 6399 does not feature tightening at the wrist and bottom, which provides added warmth and protection from the elements. Although the garments feature a slightly heavier zipper, they are not of the same weight and durability as the zippers generally featured in the exemplars of heading 6102. Therefore, based on the Apparel Terminology ICP, we do not find the subject garments meet the description of garments recognized as anoraks, windbreakers and similar articles of heading 6102, HTSUSA.
Heading 6112
In the alternative, Counsel asserts that based on the advisory opinion from the Port of San Diego which classified a similar garment, sample #6504 in heading 6112, HTSUSA, the instant articles should be also classified in heading 6112, HTSUSA.
In response to counsel’s opinion on this matter, it is a longstanding position of CBP that advisory opinions are not binding classification rulings upon which reliance is justified, nor do they serve to substantiate a claim that CBP has an established and uniform practice with regard to the classification of the subject merchandise. Rather, in the spirit of informed compliance, the duty rests upon the importer to seek a binding ruling for the classification of their merchandise. Thus, in this case, the protestant’s broker was advised by the Port of San Diego in writing to secure a binding classification ruling for the instant merchandise.
Even if we consider heading 6112 as an alternative for classifying the merchandise, it would fail. First, heading 6112, HTSUSA, covers, among other things, women’s or girls’ knitted or crocheted synthetic fiber track suits. Although counsel asserts that heading 6112 provides for goods of heading 6102, neither the legal notes to Chapter 61 nor EN 61.12 make any reference to heading 6102. Rather, EN 61.12 describes track suits as consisting of two garments, in pertinent part,
- 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.
In this instance, the subject sample tops do not possess any tightening feature at the waistband. Second, we have reviewed the amended entry documents and note that the trousers are classified in heading 6104, not 6112. Further, the protestant never discusses the trousers. Therefore, we find the argument for classification of the subject merchandise to be unfounded.
Therefore, based on the aforementioned, we find that the subject samples are not ejusdem generis within heading 6112, HTSUSA.
Heading 6110
In classifying the instant garments, we refer back to the Apparel Terminology ICP, which discusses knit jackets in detail and states, in pertinent part:
This term excludes knit garments that fail to qualify as jackets because they do not provide sufficient protection against the elements. Such garments, if they have full-front openings, may be considered cardigans of heading 6110 (other).
Although the instant garments have full-front openings and weigh approximately ten ounces, they do not meet the “sufficient protection” criteria to be classifiable in heading 6102. We note that counsel cites to New York Ruling Letter (NY) J88547, dated October 2, 2003, in which the merchandise possessed features such as zippered pockets; long sleeves with ribbed cuffs; and heavy fabric weight due to two layers or specialized construction. However, the samples at issue are not similar to the merchandise of J88547 as they do not possess the requisite number of necessary criteria to meet the standards of a jacket: they do not have any pockets; the fabric weight does not exceed 10 ounces; the zippers used in the samples are not considered “heavy duty”; and there is not any tightening at the bottom of the cuffs or bottom.
Instead, we find the instant garments are similar to sweaters of heading 6110, that serve a dual purpose since they may be worn indoors or outdoors, yet they lack the protection features of goods of heading 6102 which have the sole purpose of providing protection against the elements over other outerwear. Therefore, classification is proper in heading 6110, HTSUSA. For similar garments that were also classified in heading 6110, HTSUSA, please see HQ 964430, dated November 28, 2000; HQ 962593, dated December 2, 1999 and HQ 957238, dated February 27, 1995.
HOLDING:
The protest should be DENIED. The garment, identified as style #6399, is classified in subheading 6110.30.3055, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) (2003), which provides for women’s or girls’ knitted or crocheted garments of man-made fibers, similar to sweaters, pullovers, sweatshirts and waistcoasts (vests). The general column one rate of duty based on the 2003 tariff is 32.2 percent ad valorem.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division