HQ H262283
CLA-2 OT:RR:CTF:TCM H262283 TSM
Mr. Doug E Stokes
Medical Apparel LLC
22029 44th P1 S
Kent, WA 98032
RE: Revocation of NY N257998; Classification of unisex hospital patient tops and shorts
Dear Mr. Stokes:
This letter is in response to your request for reconsideration of New York Ruling Letter (NY) N257998, issued to Medical Apparel LLC on November 4, 2014, concerning the tariff classification of unisex hospital patient tops and shorts. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject tops under subheading 6206.40.30, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Women's or girls' blouses, shirts and shirt-blouses: Of man-made fibers: Other: Other.” Furthermore, CBP classified the subject shorts under subheading 6204.63.35, HTSUS, which provides for “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 synthetic fibers: Other: Other: Other: Other: Other.” For the reasons set forth below we hereby revoke NY N257998.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 50, No. 25, on June 22, 2016, proposing to revoke NY N257998, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
NY N257998, issued to Medical Apparel LLC on November 4, 2014, describes the subject merchandise as follows:
The submitted unisex hospital patient top is constructed from 65% polyester and 35% cotton woven fabric. The top features a V-shaped front and back neckline, short sleeves, a left chest pocket, and a full front opening secured by a double row of snap closures. The garment is attached at the shoulders by three snap closures.
The submitted pair of unisex hospital patient shorts is constructed from 65% polyester and 35% cotton woven fabric. The shorts feature an elasticized waistband in the back and a tunnel draw string tightening at the front. Both sides of the shorts are joined together by a single row of four snap closures.
You explain that the subject tops and shorts, designed only for hospital use, are manufactured as one unit and are not sold separately. In your request for reconsideration, you provided additional facts. You submitted copies of the marketing materials and invoices showing that the subject tops and shorts are packaged and sold together as single units in one bag, thus confirming that they are not sold separately.
In addition, you submitted samples of the tops and shorts at issue for our examination.
ISSUE:
What is the correct classification of the hospital patient tops and shorts under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 GRIs 2 through 6 may then be applied in order.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
6206 Women's or girls' blouses, shirts and shirt-blouses:
* * *
6204 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):
* * *
6204 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):
* * *
6207 Men’s or boys singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles
* * *
6208 Women’s or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles
* * *
6211 Track suits, ski-suits and swimwear; other garments
* * *
In a letter dated November 21, 2014, you argued that the subject merchandise should be classified as a two piece gown set, under one of the following: (1) heading 6207, HTSUS, which provides for “Men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles”; (2) heading 6208, HTSUS, which provides for “Women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles”; or (3) heading 6211, HTSUS, which provides for “Track suits, ski-suits and swimwear; other garments.”
You argued that the subject tops are not women’s or girls’ garments. You further argued that the tops are more like sleepwear/pajamas, and that they are intended for use only within a hospital setting. Moreover, you stated that the subject tops contain a pocket with an opening behind, which is specifically designed to hold a medical device such as a Telemetry or a Jackson Pratt Drain, and openings in the chest area that accommodate electrical wires that connect to monitor pads on the chest. In addition, you claimed that the subject tops were designed with many snaps for convenience during patient examinations, during MRI tests, CAT scans, x-rays, and for easy application of defibrillator pads for cardiac resuscitation, as well as during surgeries.
You also alleged that the subject shorts, designed to accompany the above-discussed tops, are not similar to the items provided for in subheading 6204.63.35, HTSUS. You claimed that the leg on the shorts was constructed to cover a Foley catheter leg bag, and that the shorts have a double row of four sets of plastic snaps, which help to accommodate different sized patients.
In NY N257998, the top was classified in heading 6206, HTSUS, a provision for women’s shirts, and the shorts were classified in heading 6204, HTSUS, a provision for women’s shorts.
You believe that the garments were confused for women’s or girls’ work/street/everyday clothing that is worn in public and professional everyday settings. However, this is not the case. The classification of garments within chapter 62, HTSUS, is governed, in relevant part, by Note 8 to Chapter 62, which provides that:
Garments of this chapter designed for left over right closure at the front shall be regarded as men’s or boy’s 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 other of the sexes.
Garments which cannot be identified as either men’s or boy’s garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments.
We have examined the tops, and they are designed for right over left closure at the front. You confirm that the tops are unisex garments, and based upon our examination, we agree that the cut of the garment does not clearly indicate that it is designed for one or other of the sexes. Therefore, for purposes of classification in chapter 62, HTSUS, and pursuant to Note 8 to chapter 62, the tops are considered women’s or girls’ garments. We reach a similar conclusion regarding the shorts. We have examined the shorts and they cannot be identified as either men’s or boy’s garments or as women’s or girls’ garments. You confirm that the shorts are unisex garments. Therefore, for purposes of classification in chapter 62, HTSUS, and pursuant to Note 8 to chapter 62, the shorts are considered women’s or girls’ garments. Since the tops and shorts are not described as men’s or boys garments, they cannot be classified under heading 6207, which is a provision for “Men’s or boys singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles.”
Next, you argue that the top is not a “regular” shirt of heading 6206, HTSUS. Instead, you argue it is more like sleepwear, dressing gowns, or pajamas. You note the different design and construction features of the top, including a rear pocket designed to hold medical devices, including post-operative drains for collecting bodily fluids from surgical sites. You note openings in the front chest area designed to accommodate electrical wires used to connect to monitor pads on the chest, and to accommodate heart monitors and post-operative drains. You also note both garments were designed with plastic snaps to accommodate equipment used in a variety of medical examinations and procedures. You argue the shorts are not “regular” shorts of heading 6204, HTSUS. You note the shorts were designed and constructed to conceal a Foley catheter leg bag. You also note the double rows of plastic snaps to accommodate proper sizing, and that they do not have pockets or a fly opening. You also note that a hospital logo is embroidered on both the top and shorts. You conclude that the top and shorts are medical sleepwear/dressing “gowns” for patient use during hospital stays. As such, you propose classification of both garments under heading 6208, HTSUS, as women’s or girls’ pajamas or dressing gowns.
In a recent Informed Compliance Publication (ICP), CBP provided, in pertinent part, the following guideline for classification of garments having multiple uses, to include sleeping.
Certain garments are also marketed as having multiple uses that may include sleeping. Such garments would not be classified as sleepwear, but in the specific headings for the named articles.
See, CBP Informed Compliance Publication on Classification: Apparel Terminology under the HTSUS, June 2008. As you have indicated, the subject tops and shorts have been designed and are marketed for multiple uses, such as for patient examinations, and medical tests and procedures, they are not classified as pajamas in heading 6207, HTSUS, or heading 6208, HTSUS. But see NY N245694, dated September 26, 2013 (classifying men’s pants, designed and marketed to be worn only for sleeping, in heading 6207, HTSUS); NY N120470, dated September 24, 2010 (classifying men’s sleepwear in heading 6207, HTSUS); NY N256458, dated September 12, 2014 (classifying women’s two-piece pajama sets in heading 6208, HTSUS); and NY K87386, dated July 21, 2004 (classifying women’s pajama sets in heading 6208, HTSUS).
However, we do agree with your argument that both garments should be classified together under a single heading. Note 14 to Section XI, provides:
Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.
The submitted upper and lower garments would normally be classified separately. As per the terms of Note 14, to be classified together as a single article, there must be a heading and a subheading which specifically provides for those garments under a single classification.
Heading 6204, HTSUS, covers “Women’s or girls’ suits, ensembles. . .and shorts (other than swimwear). Subheading 6204.23.00, HTSUS, specifically provides for ensembles of synthetic fibers. Both garments are constructed from 65% polyester and 35% cotton woven fabric. Note 2(A) to Section XI and Subheading Note 2 to Section XI, when read together, require that textile garments containing two or more textile materials be classified according to that material which predominates by weight.
The term "ensemble" as defined in Note 3(b) to chapter 62, HTSUS, provides as follows:
For the purposes of headings 6203 and 6204:
The term "ensemble" means a set of garments (other than suits and articles of heading 6207 or 6208) composed of several pieces made up in identical fabric, put up for retail sale, and comprising:
- one garment designed to cover the upper part of the body, with the exception of waistcoats which may also form a second upper garment, and
- one or two different garments, designed to cover the lower part of the body and consisting of trousers, bib and brace overalls, breeches, shorts (other than swimwear), a skirt or a divided skirt.
All of the components of an ensemble must be of the same fabric construction, style, color and composition; they also must be of corresponding or compatible size...
The above requirements for an ensemble make it clear that where the top and bottom portions are not identical in all material aspects, the garments are precluded from the ensemble classification. To qualify as an ensemble the subject merchandise must consist of a set of garments composed of several pieces made up in identical fabric, style, color, compatible size and put up for retail sale. Based upon our examination of the garments, we conclude that they are made of the identical fabric, are the same in color, composition and size, and are put together for retail sale.
Therefore, pursuant to Note 3(b) to Chapter 62, both the top and the shorts are described as a women’s or girls’ ensemble. They are described by heading 6204, HTSUS. As such, since the top and shorts are classified in heading 6204, HTSUS, they cannot be classified in heading 6211, HTSUS, which is a provision for, in relevant part, “other garments.”
HOLDING:
By application of GRIs 1 and GRI 6, the tops and shorts are classified as ensembles under heading 6204, HTSUS, and subheading 6204.23.00, HTSUS, which provides for “Women’s or girls’ … ensembles...: Ensembles: Of synthetic fibers.”
The tops are classified in subheading 6204.23.0055, HTSUS, which provides for “Women’s or girls’ … ensembles...: Ensembles: Of synthetic fibers: Other: Blouses and shirts: Other.” The 2016, column one rate of duty will be 26.9% ad valorem. This is the rate that would apply if the garments were entered separately and classified in subheading 6206.40.3030, HTSUS.
The shorts are classified in subheading 6404.23.0045, HTSUS, which provides for “Women’s or girls’ … ensembles...: Ensembles: Of synthetic fibers: Other: Shorts.” The 2016, column one rate of duty will be 28.6% ad valorem. This is the rate that would apply if the garments were entered separately, and classified in subheading 6204.63.3532, HTSUS.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at.www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N257998, dated November 4, 2014, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division