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HQ 967320




October 19, 2005

CLA-2:RR:CR:TE: 967320 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6105.20.2010, 6103.43.1520

David A. Riggle, Esq.
Riggle and Craven
8430 West Bryn Mawr Avenue
Suite 525
Chicago, IL 60631

RE: Revocation of NY G86317; certain ScentBlocker® Underguard ™ three-layer garments with activated-carbon particles embedded in one layer

Dear Mr. Riggle:

This is in reconsideration of New York Ruling Letter (NY) G86317, dated January 25, 2001, issued to the Customs broker for Robinson Laboratories Inc. (“Robinson”) by the U.S. Customs Service, now the Bureau of Customs and Border Protection (hereinafter “CBP”), concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain ScentBlocker® garments made in China. As you now represent Robinson in this matter, this letter is addressed to you.

We have reviewed NY G86317 and have determined that the classification of the garments provided is incorrect. This ruling sets forth the correct classification of the garments. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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, 2186 (1993), notice of the proposed revocation of NY G86317 was published in the Customs Bulletin, Volume 39, Number 35, on August 24, 2005. CBP received no comments during the notice and comment period that closed on August 23, 2005.

FACTS:

On January 5, 2001, Robinson’s Customs broker requested a tariff classification ruling on the ScentBlocker® garments that are the subject of NY G86317. In NY G86317, these garments are described as “activated carbon lined clothing consisting of a pullover top and stretch waistband pants.” The original samples of the garments and any accompanying literature were destroyed on September 11, 2001, in our former 6 World Trade Center office in New York City.

Notice of Proposed Revocation of NY G86317 was originally published in the Customs Bulletin, Volume 38, Number 21, on May 19, 2004. As the original samples and literature were destroyed, the proposed ruling by CBP to revoke NY G86317 (Headquarters Ruling (HQ) 966422) was drafted using the limited available information about the garments. During the Notice and Comment Period of Proposed Revocation, you contacted and informed us that several of our statements in HQ 966422 regarding the construction of the ScentBlocker® garments that are the subject of NY G86317 were not accurate. On Robinson’s behalf, you provided new samples and literature to this office on July 20, 2004, along with arguments against revocation of NY G86317. A Withdrawal of Proposed Revocation of NY G86317 was published in the Customs Bulletin, Volume 38, Number 34, on August 18, 2004. We met with you on February 3, 2005 to discuss your arguments and you provided CBP with additional information and arguments against revocation on February 21, 2005.

The new samples are identified as the ScentBlocker® Underguard ™ Top (“top”) and ScentBlocker® Underguard ™ Bottom (“bottom”). While the models in NY G86317 are not identified by model name, you represented that these new samples are the current versions of the garments classified in NY G86317. Laboratory analysis of this fabric from the samples showed that the garments are composed of three layers, not lined as stated in NY G86317. Their outer layer, printed in a camouflage pattern, is made of a weft knit interlock construction and is composed wholly of polyester. The middle layer is composed of activated carbon particles embedded in a nonwoven polyester construction. The inner layer has a weft knit construction and is composed wholly of polyester. The three layers are held together with adhesive material that is not visible in the cross section. The fabric has the following composition by weight of the entire fabric: top printed layer: 50.9%, middle nonwoven layer: 15.4%, inner layer: 21.8%, activated carbon and binder: 11.9%. The top has a black polyester stretch ribbed collar and cuffs. The collar can be loosened by unzipping two zippers that run from the top front of the collar to approximately halfway to the armpit. The bottom has a black polyester stretch ribbed waist and ankle cuffs.

The activated carbon particles in the top and bottom block the human scent of the wearer from wildlife while hunting. Information that you provided states that the scent blocking properties of the carbon particles do not become exhausted. Rather, these properties last for the life of the garments and are reactivated by drying the garments in the dryer following each washing.

In NY G86317, CBP classified the top and bottom in subheading 6815.10.0000, HTSUSA, which provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: Nonelectrical articles of graphite or other carbon.”

You argue that the top and bottom are properly classified in subheading 6815.10.0000, HTSUSA, because their “essential character” is imparted by the activated carbon particles in them. Alternatively, you argue that if the garments are not classified in subheading 6815.10.0000, HTSUSA, they are classified in subheading 9507.90.8000, HTSUSA, which provides for “Fishing rods, fish hooks and other line fishing tackle; fish landing nets, butterfly nets and similar nets; decoy “birds” (other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof: Other: Other, including parts and accessories: Other, including parts and accessories.”

ISSUE:

Whether the top and bottom are properly classified in heading 6815, HTSUSA, as articles of other mineral substances not elsewhere specified or included; in Section XI, HTSUSA, as textile articles of apparel; or in heading 9507, HTSUSA, as other articles of hunting equipment.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4-digit headings and the 6-digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

GRI 1, in its entirety, states:

The table of contents, alphabetical index, and titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according [to the remaining GRIs, in order].

Part III of the EN to GRI 1 states, in pertinent part, that:

The second part of [GRI 1] provides that classification shall be determined:
according to the terms of the headings and any relative Section or Chapter Notes, and where appropriate, provided the headings or Notes do not otherwise require, according to the provisions of Rules 2, 3, 4, and 5.

Part IV of the EN to GRI 1 emphasizes that:

Provision (III) (a) is self-evident, and many goods are classified in the Nomenclature without recourse to any further consideration of the Interpretative Rules (e.g.. live horses (heading 01.01), pharmaceutical goods specified in Note 4 to Chapter 30 (heading 30.06)).

The literature that you provided and Robinson’s website refer to the articles at issue, respectively, as a “shirt” and “pant.” The articles are also referred to collectively in the literature as “clothing.” Furthermore, the patents on the technology that Robinson incorporates in the top and bottom all apply to “odor absorbing clothing.” Nevertheless, you argue that the top and bottom are not properly classified as a “shirt” and “pant” because their “essential character” is imparted by the activated carbon particles in them.

“Essential character” is a term used in GRI 3(b). The essential character of an article is determinative only when classification of the article is determined pursuant to that GRI. Where the article is classified pursuant to the GRIs that precede GRI 3(b), the “essential character” of the article is not determinative unless the term appears in legal notes relevant to the articles being classified.

The top and bottom are both constructed of knit polyester (See HQ 967321 classifying the fabric with which the garments are made as a textile fabric). Any garments made from this fabric, therefore, are textile articles of apparel. Consequently, we find that there are headings in Section XI that specifically provide for the articles. Heading 6105, HTSUSA, which provides for, among other articles, men’s knitted shirts, specifically provides for the top. Heading 6103, HTSUSA, which provides for, among other articles, men’s knitted trousers provides for the bottom.

Having concluded that the top and bottom are specifically captured by headings in Section XI, we must examine whether the top and bottom are excluded from classification in that Section by any relative section or chapter notes. Note 1(q) to Section XI excludes, among other things, “carbon fibers or articles of carbon fibers of heading 6815.” While one layer of the top and bottom does contain carbon, it contains activated carbon particles, not fibers. Based on our research and information submitted by the patent-holder of the technology that Robinson incorporates in the top and bottom, it would not be possible to make the top and bottom with carbon fibers, as carbon fibers are too brittle and could not be constructed into a garment.

In light of the above, we find that Note 1(q) to Section XI does not exclude the top and bottom from classification in Section XI, HTSUSA. We find the top and bottom are classified as what they are described as in the literature that you provided and on Robinson’s website, that is, a “shirt” and a “pant.” The top is classified in heading 6105, HTSUSA, as a men’s knitted shirt. The bottom is classified in heading 6103, HTSUSA, as men’s knitted trousers. The presence of activated carbon particles in one layer of the garments does not remove the articles from the scope of the headings.

Your alternative assertion is that the top and bottom are classified in subheading 9507.90.8000, HTSUSA, which provides for, among other things, other articles of hunting equipment. You argue that the garments are classifiable in this provision because they are “specifically designed for use in the sport of hunting.” You cite the holding of the recent Court of Appeals for the Federal Circuit (“CAFC”) case, Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir., 2004), as support for this argument.

In the Bauer case, the CAFC held that two styles of hockey pants were classified as ice hockey equipment under subheading 9506.99.25, HTSUSA. In making the determination that the pants were prima facie classifiable in this provision, the CAFC stated: “[b]ecause it is undisputed that Bauer’s pants were specifically designed and intended for use only while playing ice hockey, we hold that the pants are prima facie classifiable under subheading 9506.99.25 as ice-hockey equipment.” You argue that the same definition of “equipment” applied by the CAFC in regard to subheading 9506.99.25, HTSUSA, is applicable to subheading 9507.90.8000, HTSUSA.

First, we note the structural difference between heading 9506 and 9507, HTSUSA. Heading 9506, HTSUSA, in its entirety, reads:

Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof. [Emphasis added].

And, heading 9507, HTSUSA, in its entirety, reads:

Fishing rods, fish hooks and other line fishing tackle; fish landing nets, butterfly nets and similar nets; decoy “birds” (other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof. [Emphasis added].

While “equipment” appears in the words of particular description in heading 9506, HTSUSA, it appears in the general terms of heading 9507, HTSUSA. Whereas the definition of “equipment” applied by the CAFC in Bauer affects the words of particular description in heading 9506, HTSUSA, the definition does not affect the words of general description in heading 9507, HTSUSA. Rather, we find the rule of ejusdem generis to be determinative of whether articles not specifically covered by heading 9507, HTSUSA, are classified in this heading. In Van Dale Industries v. United States, 18 C.I.T. 247 (Ct. Int'l Trade, 1994), aff’d 50 F.3d 1012 (Fed. Cir. 1995), in discussing ejusdem generis, the court affirmed that:

[o]ne rule of statutory construction is ejusdem generis, which means "of the same kind, class, or nature." Black's Law Dictionary 464 (5th ed. 1979). This rule applies “whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named." [citing United States v. Damrak Trading Co., 43 C.C.P.A. 77, 79 (C.C.P.A., 1956)].

Under ejusdem generis, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Id. The court in Sports Graphics v. United States, 24 F. 3d 1390 (Fed. Cir., 1994), affirmed this principle when it held that, “[a]s applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.”

In the case at hand, the top and bottom at issue do not fall within the class of merchandise particularly described in heading 9507, HTSUSA. The exemplars listed in heading 9507, HTSUSA, are articles that are requisite for sport, instruments directly used to hunt, attract, or capture fish, butterflies, etc. Comparatively, the top and bottom are not directly used to hunt animals. While they mask the human scent of the wearer, they in no way attract animals. Additionally, they in no way resemble any of the exemplars and do not share their physical characteristics.

The EN to heading 9507 further support that the garments at issue are not classifiable in heading 9507, by identifying the “similar hunting or shooting equipment” that is covered by heading 9507. The EN states, in relevant part, that:

This heading covers:

Certain hunting or shooting requisites such as decoy “birds” (but not including decoy calls of all kinds (heading 92.08) or stuffed birds of heading 97.05) and lark mirrors.

The EN names only certain requisites for hunting, none of which remotely resemble the top and bottom at issue.

For these reasons, we find that the definition of “equipment” applied by the CAFC in Bauer does not affect the classification of the top and bottom at issue. Additionally, the principle of ejusdem generis does not support classification of the top and bottom in heading 9507, HTSUSA, as the top and bottom are not in the same class as the specifically named exemplars in the heading or the articles described in the EN to that heading.

HOLDING:

NY G86317 is hereby revoked.

The ScentBlocker® Underguard ™ Top is classified under subheading 6105.20.2010, HTSUSA, which provides for: “Men’s or boys’ shirts, knitted or crocheted: Of man-made fibers: Other: Men’s.” The 2005 column 1, “General” duty rate for this merchandise is 32 percent ad valorem.

The ScentBlocker® Underguard ™ Bottom is classified under subheading 6103.43.1520, HTSUSA, which provides for: “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Trousers, breeches and shorts, Other, Trousers and Breeches: Men’s.” The 2005 column 1, “General” duty rate for this merchandise is 28.2 percent ad valorem.

The ScentBlocker® Underguard ™ Top falls within textile category 638 and the ScentBlocker® Underguard ™ Bottom falls within textile category 647. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. 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

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