CLA-2 RR:CTF:TCM H170635 MG
Port Director
U.S. Customs and Border Protection
1624 East Seventh Avenue, Suite 101
Tampa, FL 33605
Attn: Angelina Cano, Senior Import Specialist
Re: Application for Further Review of Protest No. 2720-11-100295: Squeem Style 26PW (Perfect Waist) Corset
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest 2720-11-100295, filed May 6, 2011, on behalf of Squeem Corp. (Protestant). The Protest AFR concerns the classification of the Squeem Style 26PW (Perfect Waist) corset under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was provided to this office.
FACTS:
According to the label, this item has a 25% cotton lining and a 75% rubber covering. According to the submission, the item at issue is made of cotton and natural vulcanized rubber, fused together into a single layered compressive fabric. Examination of the garment shows that it is a cotton and rubber waist cincher that begins below the bustline and extends to the hipline. It is composed of four highly supportive panels that are sewn together with interlock stitching on the inside. It measures about 12¾ inches long at the center and about 11½ inches long at the sides. Features include two vertical stays on the front and two on the back, which run down the entire length of the garment, reinforced seams, and a full front opening secured by two rows of sixteen hook and eye adjustable closures that extend down the center of the garment.
The protest covers three entries of the subject merchandise made from January 27, 2010, through April 20, 2010, under 4015.90.00, HTSUS, which provides for: “Articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber: Other: Other.” The entries were liquidated on April 29, 2011, under subheading 6212.30.0010, HTSUS, which provides for: “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Corsets: Of cotton.” This Protest and AFR were filed on May 6, 2011.
CBP Laboratory examination of the instant garment shows that Squeem Style 26 PW is comprised of a layer of knit textile fabric with a noncellular rubber. The analytical results of the CBP Laboratory for Squeem Style 26 PW shows the following:
1. The whole fabric (rubber with textile) mass per unit area (grams per square meter) is 855 g/m2.
2. The chief weight component is rubber (approx. 76 percent).
3. The rubber component is noncellular.
ISSUE:
What is the proper classification of the Squeem Style 26 PW under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on May 6, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further Review of Protest 2720-11-100295 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleges that the Port’s decision is inconsistent with New York Ruling Letter (NY) E84977, dated August 5, 1999.
Heading 5906, HTSUS, provides for “rubberized textile fabrics other than those of heading 5902” (heading 5902, HTSUS, provides for “tire cord fabric” and is not applicable here). Note 4(a)(i) to Chapter 59 provides as follows:
4 - For the purposes of heading 59.06, the expression “rubberized textile fabric” means:
(a) Textile fabrics impregnated, coated, covered or laminated with rubber,
(i) Weighing not more than 1,500 g/m2; or
* * *
This heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 40), or textile products of heading 5811.
Based on the CBP laboratory findings, Squeem Style 26PW has a mass per unit area that is less than 1,500 g/m2, which meets the terms of Note 4(a)(i) to Chapter 59. Given the weight of the fabric and because the rubber is not cellular, the fabric is classified in Chapter 59, HTSUS, specifically in heading 5906, HTSUS.
The 2010 HTSUS headings under consideration in this case are thus as follows:
6113 Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907:
6210 Garments, made up of fabrics of heading 5602, 5603,
5903, 5906 or 5907:
6212 Brassieres, girdles, corsets, braces, suspenders, garters, and similar articles and parts thereof, whether or not knitted or crocheted:
* * * *
Note 1 to Chapter 62 provides as follows:
This chapter applies only to made up articles of any textile fabric other than wadding, excluding knitted or crocheted articles (other than those of heading 6212).
Note 5 to Chapter 62 provides as follows:
Garments which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210.
The Squeem Style 26 PW is classifiable in heading 6210, HTSUS, as it is a garment made up of a fabric named in heading 6210, HTSUS. It is made up of a rubberized knit fabric of heading 5906, HTSUS, but is not itself a knitted article, and, as such, it is not excluded from classification in Chapter 62 by Note 1 to Chapter 62. The garment is also potentially classifiable in heading 6212, HTSUS, as girdles, corsets, and similar articles and whether or not knitted or crocheted.
Protestant argues that Squeem Style 26 PW is not classifiable in heading 6212, HTSUS. As the Squeem Style 26 PW is classifiable in heading 6210, HTSUS, Note 5 to Chapter 62, is applicable and the garment must be classified in heading 6210, HTSUS, as between headings 6212 and 6210, HTSUS. Therefore, we do not need to reach a determination whether the garment is classified in heading 6212, HTSUS.
Heading 6113, HTSUS also describes the good. It is a garment made up of a knitted fabric of heading 5906. The rubberized cotton fabric of which the textile is composed is knitted.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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 be applied in order. GRI 2 is not applicable in this case. GRI 3 provides:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
As headings 6113 and 6210 do not refer to only parts of the goods, GRI 3(a) directs us to the heading which is most specific. The Court in Better Home Plastics Corp. v. United States, 20 C.I.T. 221, 222 (Ct. Int'l Trade 1996), stated “GRI 3 mandates that, when ’goods are, prima facie, classifiable under two or more headings’, the court must classify the merchandise in question pursuant to the heading providing the most specific description.” The Court further referred to this as “the rule of relative specificity.” Id.
Under this rule of relative specificity, we look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty. See, Sharp Miocroelectronics Technology, Inc. v. The United States, 122 F.3d 1446 (Fed. Cir. 1997), citing Amersham Corp. v. United States, 5 C.I.T. 49, 564 F. Supp. 813, 824 (Ct. Int'l Trade 1983). Accordingly, for purposes of this issue a comparison of the terms of heading 6113 and heading 6210 is in order. Heading 6113 and 6210 both provide for the same thing, “garments, made up of fabrics of [certain] headings.” However, 6113 is limited to knitted or crocheted fabrics of the named headings. Therefore, heading 6113, HTSUS is more specific. It is more difficult to satisfy.
Squeem Style 26 PW is classified in heading 6113, HTSUS. The rubber coating completely obscures the underlying knit cotton fabric, therefore, it is specifically classified in subheading 6113.00.1012, HTSUS, which provides for: “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Having an outer surface impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric.”
With respect to Ruling NY F83425, dated March 29, 2000, issued to Squeem regarding the classification of a cotton and rubber corset, without laboratory testing of the fabric and examination of the garment specifically described, we have no basis to believe that it is incorrect, as to the heading. Similarly, with respect to Protestant’s assertion that the instant garment is similar to the product at issue in NY E84977, dated August 5, 1999, involving a waist cincher style SP001 composed of rubber material with a knitted cotton lining, without laboratory testing of the fabric and examination of the garment specifically described, we have no basis to believe that it is incorrect, as to the heading.
HOLDING:
By application of GRI 1, Squeem Style 26 PW is classified in heading 6113, HTSUS, specifically in subheading 6113.00.1012, HTSUS, which provides for: “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Having an outer surface impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric.” The rate of duty is 3.8%, ad valorem.
Since reclassification of the merchandise as indicated above would result in a lower rate of duty than claimed you are instructed to allow the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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, Regulations and Rulings of the Office of International Trade 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 Harmon, Director
Commercial and Trade Facilitation Division