OT:RR:CTF:FTM H326573 TJS
Ms. Celeste Aguirre-Fernandez
GAP Inc.
2 Folsom Street, 6th Floor
San Francisco, CA 94105
RE: Revocation of NY N324185; Tariff classification of a woman’s top from India
Dear Ms. Aguirre-Fernandez,
This is in reference to New York Ruling Letter (“NY”) N324185, dated February 18, 2022, concerning the tariff classification of a woman’s top under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, U.S. Customs and Border Protection (“CBP”) classified the top at issue under subheading 6211.42.10, HTSUS, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of cotton: Other.” Upon additional review, we determined the classification of this product under subheading 6211.42.10, HTSUS, to be incorrect. For the reasons set forth below, we hereby revoke NY N324185.
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), notice proposing to revoke NY N324185 was published on October 12, 2022, in Vol. 56, No. 40 of the Customs Bulletin. Four comments were received in response to the notice and will be addressed below.
FACTS:
NY N324185 described the garment at issue as follows:
Style 3322 is a woman’s top constructed from 100% cotton woven fabric. The top has a right over left full front opening with seven button closures, a pointed collar, long sleeves with button cuffs, a single chest pocket, an inside pocket below the waist, and a curved hemmed bottom.
Along with the ruling request, you submitted a sample of the garment to the National Commodity Specialist Division, which forwarded the sample to our office. The sample’s inside pouch measures two inches by two inches, has an overlap opening of approximately ¾ inch, and is sewn along one edge to the garment’s inner seam.
Images of the sample are provided below:
ISSUE:
What is the tariff classification of the woman’s top at issue?
LAW AND ANALYSIS:
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 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.
The 2022 HTSUS headings under consideration are as follows:
6206 Women’s or girls’ blouses, shirts and shirt-blouses:
6211 Track suits, ski-suits and swimwear; other garments:
* * *
Note 4 to Chapter 62, HTSUS, provides:
4. Headings 6205 and 6206 do not cover garments with pockets below the waist, with a ribbed waistband or other means of tightening at the bottom of the garment. Heading 6205 does not cover sleeveless garments.
“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 loose-fitting garments also designed to cover the upper part of the body but may be sleeveless and with or without an opening at the neckline. “Shirts”, “shirt-blouses” and “blouses” may also have a collar.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The ENs to heading 6206, HTSUS, provide in pertinent part:
This heading covers the group of women’s or girls’ clothing, not knitted or crocheted, which comprises blouses, shirts and shirt-blouses (see Note 4 to this Chapter).
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.
* * *
The issue before us is whether the small inside pouch constitutes a “pocket” such that Note 4 to Chapter 62, HTSUS, precludes the garment from being classified in heading 6206, HTSUS. We find that it does not.
The term “pocket” is not defined in the HTSUS or the ENs. In the absence of a definition of a term in the HTSUS or ENs, the term’s correct meaning is its common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673, F.2d 1268 (1982). According to dictionary definitions, a “pocket” is a pouch or small bag sewn into or on clothing used for carrying small items. Here, the small pouch is sewn into the inner seam of the woman’s top. Hence, the pouch will be considered a “pocket” if the wearer uses it to carry small items.
CBP has previously considered various factors that make a pocket capable of use. For example, in Headquarters Ruling Letter (“HQ”) 964737, dated January 4, 2001, CBP determined that a small flat pocket on a plush cartoon character head was not sufficient to find that the article’s primary use was as a novelty coin purse or similar container of heading 4202, HTSUS. Although the issue in that ruling concerned the article’s primary use as ornamental, CBP noted that the articles were stuffed so full that the pockets were rendered useless except for the possibility of inserting very small, flat articles. Thus, the capacity to hold very small, flat articles does not necessarily make a pocket functional. Functional pockets must also be accessible. In HQ 080047, dated August 26, 1988, CBP determined that a rear pocket was primarily decorative rather than functional since the position of the pocket (approximately halfway down the back of a shirt) made it difficult for the wearer to have access to it.
In our opinion, the pouch in the garment at issue does not function as a coin pocket. As discussed in HQ 080047, a crucial element of a functional pocket is accessibility. Here, the pouch’s position at the garment’s lower inner seam is impractical. Accessing the pouch would require the wearer to either reach inside the garment or turn the bottom inside out. Given the pouch’s size and construction, inserting, and retrieving articles into and from the pouch would require even more dexterity. The pouch measures two inches by two inches and can hardly fit a single key or two quarter coins. Although it is possible to fit very small items into the pouch, we find that the wearer would not likely rely on the pouch to securely hold items. The pouch is flimsy, lacks any means of secure closure, and is predominantly unattached to the top since it is sewn onto the garment by a mere two-inch seam. We find that the construction and position of the pouch renders it futile and that a consumer would not reasonably utilize it to hold or carry articles. Accordingly, the pouch is not a pocket for purposes of applying Note 4 to Chapter 62, HTSUS.
Since the pouch is not a pocket, Note 4 to Chapter 62, HTSUS, does not preclude the subject garment from classification in heading 6206, HTSUS. Accordingly, the women’s top, Style 3322, is classified in heading 6206, HTSUS. Specifically, the subject top, which is made of 100% cotton, is classified in subheading, 6206.30.30, HTSUS, which provides for “Women’s or girls’ blouses, shirts and shirt-blouses: Of cotton: Other: Other.”
CBP received four comments opposing the notice of the proposed revocation. All of the commenters argue that the term “pouch” is synonymous with “pocket” and that this ruling’s use of the term “pouch” is confusing. The commenters assert that a pouch is a functional object used to carry items and, therefore, the “pouch” in the subject top meets the dictionary definitions of “pocket.” Three commenters express concern that CBP is applying a subjective “actual use” determination.
We understand that the terms “pocket” and “pouch” are sometimes used interchangeably. At issue is the application of Note 4 to Chapter 62, which specifically refers to a “pocket.” This ruling uses the term “pouch” to indicate that the article is not a “pocket” as contemplated by Note 4 to Chapter 62, HTSUS. The term “pouch” is used as a distinguishing term and is not to be construed as synonymous of “pocket” for purposes of applying Note 4 to Chapter 62, HTSUS, in this ruling. Furthermore, this ruling relies on the plain-language definitions of “pocket.” Based on the dictionary definitions, “pockets” are “for carrying.” The term “for” indicates purpose. Thus, a pocket must not only be capable of carrying objects but have the purpose of carrying objects. This ruling does not apply an actual use test because we do not require the wearer to actually use a pocket to carry objects. The determinative question is whether a pocket is capable of and intended for holding or carrying objects. As discussed above, the pocket’s futile design in its entirety indicates that it is not intended to hold or carry objects.
One of the commenters further notes that in HQ 964737, which this ruling cites, the pocket on the plush head distinguished the article from toys of heading 9503, HTSUS, which must be primarily designed for the amusement of children or adults. The ruling stated, “The manufacturer has expended additional cost and effort to create the instant articles with the pocket. The articles were designed to provide a space for a child to keep small objects.” Although the manufacturer designed the article with a pocket, CBP ultimately found the pocket remained useless due to the article’s design and construction. Similarly, here, that the top contains an inner “pouch” does not make the “pouch” a pocket functional for carrying objects. The commenter also cites to several rulings classifying garments with inner or rear pockets. However, none of the rulings cited by the commenter discuss the utility of the pockets as it was not a determinative issue. Therefore, we do not find those rulings to be informative to the discussion.
Another commenter notes the higher duty implications associated with shirts without pockets below the waist of heading 6206, HTSUS. In this regard, we reiterate that CBP’s classification decisions are made in accordance with the GRIs and not duty rates. The third commenter also states that it is common for outdoor apparel to contain similar small pockets and provides examples including small pockets on shorts’ inner waistbands and rear pockets on a bike shirt. Those examples however differ from the top at issue since shorts are a distinct garment and the bike shirt pockets are large enough to carry water bottles.
The determinative factor is whether the woman’s top has a below-the-waist pocket capable of and intended for carrying small objects. In culmination of the factors described above (i.e., accessibility, size, location, and construction), we find that the article does not function to carry objects. Therefore, the woman’s top does not have a pocket below the waist for purposes of Note 4 to Chapter 62, HTSUS.
HOLDING:
Based on the information provided, by application of GRIs 1 and 6, the woman’s top at issue in NY N324185 is classified under heading 6206, HTSUS, and specifically under subheading 6206.30.30, HTSUS, which provides for “Women’s or girls’ blouses, shirts and shirt-blouses: Of cotton: Other: Other.” The 2022 general, column one, general rate of duty is 15.4% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS are the accompanying duty rates are provided at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N324185, dated February 18, 2022, is hereby 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,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division