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HQ 966819




June 21, 2004

CLA-2: RR:CR:TE 966819 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6206.30.3040

Port Director
Customs and Border Protection
JFK International Airport Area
Building 77
JFK International Airport
Jamaica, NY 10430

RE: Decision on Application for Further Review of Protest No. 4701-03-101021, concerning classification of Women’s Woven Upper Body Garments; Headings 6206 and 6211, HTSUSA

Dear Port Director:

This is a decision on a protest timely filed on July 30, 2003, against your decision in the classification of women’s woven upper body garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The subject merchandise was imported by ANI Industries, LLC, at the U.S. Customs and Border Protection (CBP) JFK, New York, port of entry. A sample of the subject merchandise was submitted to this office for examination.

FACTS:

The protest concerns five entries covering six styles of women’s upper body garments constructed of 100 percent cotton fabric, which were imported in June 2002, July 2002, and liquidated in May 2003. The garment submitted is identified as style number 7366-687. Although style number 7366-687 is not listed as one of the styles subject to the protest, it has been identified as being representative of the garments now under review.

The CBP, JFK Airport, New York, classified the subject merchandise under subheading 6206.30.3010, HTSUSA, which provides for “Women’s or girls’ blouses, shirts and shirt-blouses: Of cotton: Other: Other, With two or more colors in the warp and/or the filling: Women’s.” The protestant disagrees with that classification and asserts that the subject merchandise is properly classified under subheading 6211.42.0054, HTSUSA, which provides for “Track suits, ski-suits and swimwear; Other garments: Other garments, women’s or girls’: Of cotton, Blouses, shirts and shirt-blouses, sleeveless tank styles and similar upper body garments, excluded from heading 6206: With two or more colors in the warp and/or filling.” The protestant asserts that the garment is excluded from heading 6206, HTSUSA, based on the presence of a “tightening” feature at the bottom hem.

The sample is an upper-body garment made from 100 percent cotton woven fabric that is green in color. The back of the garment has a rectangular yoke panel (approximately 16.5 inches wide x 5.5 inches long) that extends from the top of each shoulder down the back. A second panel (approximately 22 inches wide x 20 inches long) is joined to the back yoke panel with a topstitched seam. The front of this garment is constructed in four panels with a topstitched seam extending from the hip at the side seams and extending across the front of the garment. The garment’s hem extends approximately 7 inches below the hip. Although the garment is sized “M” for medium, it is designed with ample spaciousness having dimensions of approximately 22 inches wide (at the waist) x 25.5 inches long (from the shoulder). The garment features short sleeves, a notched collar with lapel, a full front opening secured by five buttons, and a straight hemmed bottom with side vents extending approximately 3 inches upward from the bottom. The garment also features an adjustable, 2-button tab at each side seam, which is sewn approximately .5 inch above the side vent.

ISSUE:

What is the proper classification for the merchandise?

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 Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provides a commentary on the scope of each heading of the HTSUSA and is generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In the General EN’s to Ch. 62, the following are features set forth for shirts, shirt-blouses, and blouses:

Shirts and shirt-blouses 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. Blouses are also designed to cover the upper part of the body but may be sleeveless and without an opening at the neckline.

Based on this description, the subject article meets the description of a shirt, shirt-blouse, or blouse because the garment is designed to cover the upper part of the body, has short sleeves, and a full opening starting at the neckline. The EN to heading 6206 does provide exclusionary language as follows: “This heading does not cover garments with pockets below the waist or with a ribbed waistband or other means of tightening at the bottom of the garment.” Therefore, the subject garment would be properly classified as a blouse in heading 6206, HTSUSA, unless it has a means of tightening at the bottom of the garment.

The protestant has asserted that the garment is excluded from classification in heading 6206, HTSUSA, because the button tabs at each side serve as a tightening feature at the bottom. In support of this position, the protestant cites to the CBP Informed Compliance Publication entitled, What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUS, November 2000, which restates the language of the EN for 6206 which excludes from the heading any garment that has a ribbed waistband or other means of tightening at the bottom.

In response to the protestant’s assertions, we begin by noting that all CBP Informed Compliance Publications contain a “Notice” at page 2, stating that the publication is only intended to provide guidance and information to the trade community. These publications do not in any way replace or supersede CBP’s laws or regulations. In this instance, we find that it is necessary to focus on the exclusionary language of the EN to 6206.

It is important to note that the specific “tightening” exemplar provided in the EN to 6206, is a “ribbed waistband.” In fact, the button tabs on the subject garment do not serve as an “other means of tightening” because they fail to gather or secure the garment against the wearer’s body as one would expect from a “ribbed waistband”. Contrary to any assertion that the button tabs have the effect of “tightening” the fabric, there is actually an increase in width at the bottom of the garment. The subject garment is designed to be more fitted at the shoulders (16.5 inches wide), with an increase in width of 5.5 inches at the waist (22 inches wide), and an increase of one more inch at the bottom hem (23 inches wide). Thus, we do not consider the button tabs to be a tightening element because the width at the bottom hem has still increased by one full inch even when the side tabs are fully secured. When the tabs are fully secured by the second button, it provides a fitted detail similar to a dart or pleat at the side seams which is more properly characterized as a stylistic detail designed to enhance appearance rather than as a tightening feature. These tabs can also be adjusted to provide no fitting.

Since we do not consider the button tabs on the garment to be an “other means of tightening” within the meaning of the exclusionary language of the EN to 6206, we find that CBP Port Ruling Letter, DD 805057, dated December 28, 1994, is inapplicable. The protestant cited DD 805057, in support of classification of the subject garment in heading 6211, HTSUSA, as a blouse excluded from heading 6206, HTSUSA. In DD 805057, CBP determined that a women’s blouse having a “waistband with adjustable tabs for tightening” was properly classified in subheading 6211.42.0054, HTSUSA. In the subject case, the garment has no “waistband” and the tabs fail to serve as a “tightening” element. The protestant also cited CBP Ruling Letters, DD 806189, dated February 7, 1995, and PD A83850, dated May 31, 1996, in support of classification of the subject garment in heading 6211, HTSUSA. However, we have determined that these rulings are distinguishable because each involved the classification of women’s upper body garments with pockets below the waist, which is one of the specific exclusionary exemplars in the EN to 6206.

In view of the foregoing, we have determined that the sample submitted, style number 7366-687, is properly classified in heading 6206, HTSUSA, which provides for “Women’s or girls’ blouses, shirts and shirt blouses.” Thus, the port correctly classified the merchandise, which is the subject of this protest. However, we note that the sample submitted does not have two or more colors in the warp and/or the filling and will be classified in a different subheading at the eight-digit level than the merchandise, which is the subject of this protest.

HOLDING:

The sample submitted, a women’s blouse identified as style number 7366-687, is classified in subheading 6206.30.3040, HTSUSA, which provides for “Women’s or girls’ blouses, shirts and shirt-blouses: Of cotton: Other: Other, Other: Women’s." The general column one duty rate is 15.4 percent ad valorem. The textile category is 341.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you instruct the protestant to check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the CBP Electronic Bulletin Board (CEBB), which is available now on the CBP 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, the protestant should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The protest should be DENIED. 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

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