CLA-2 OT:RR:CTF:TCM H145635 JRB
Donna L. Shira
Sharretts, Paley, Carter & Blauvelt, P.C.
75 Broad Street
New York, New York 10004
RE: Tariff classification of a girls’ skirt with sequins
Dear Ms. Shira:
This is in response to your request dated December 21, 2010, on behalf of your client Fun Dress Asia Industries Limited, to U.S. Customs and Border Protection (CBP) National Commodity Specialist Division in New York for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a girls’ skirt. Your ruling request was forwarded to this office for a response. In addition to the information that you submitted, we also considered the arguments that you made in a conference call with my staff on Tuesday, April 5, 2011.
FACTS:
The subject merchandise, identified as Style 03050112, is a girls’ red skirt that has a polyester knitted outer shell. The skirt has a fabric-covered elastic waistband with a large woven satin bow in the center (see first picture on the following page). The skirt consists of three layers. The inner layer is made of woven man-made fibers. The middle layer is made of knitted synthetic fibers. The outer layer consists of four rows of fabric panels, sewn together, that circumvent the waist. The top panels, which span from the waist to down about four inches, are made of a knitted synthetic fiber panel. Directly below and attached to the upper panels, are two panels of red knit openwork fabric which is topped with sequins that are sewn directly onto the fabric and capped off by a man-made fiber net ruffle (second and third pictures below). Pictures of the sample are included below.
Picture of the entire front side of the dress, including the large red bow:
Picture of the red plastic sequins sewn onto the knit lace lower panels:
Picture of the bottom of the skirt with ruffles and the lower lace panels, including the red sequins that are sewn onto the skirt:
ISSUE:
Whether the instant merchandise is classified in heading 3926, HTSUS, as an article of plastic, or heading 6104, HTSUS, as a girl’s skirt?
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.
The HTSUS provisions under consideration in this case are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
6104 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), knitted or crocheted:
In addition, Note 2(P) to Chapter 39, HTSUS (the chapter in which heading 3926, HTSUS, is located), provides that articles of Section XI, HTSUS (the section in which heading 6104, HTSUS, is located), are excluded from heading 3926, HTSUS. Therefore, we must first determine if the garment is completely described by heading 6104, HTSUS.
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 on the contracting parties, 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. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The General EN to Chapter 61 provides, in relevant part:
The classification of goods in this Chapter is not affected by the presence of parts or accessories of, for example, woven fabrics, furskin, feathers, leather, plastics or metal. Where, however, the presences of these materials constitutes more than mere trimming the articles are classified in accordance with the relative Chapter Notes …, or failing that, according to the General Interpretative Rules.
In this case, there is no dispute that the merchandise is described by heading 6104, HTSUS, as a girls’ knit skirt. The only issue is whether heading 3926, HTSUS, also describes the merchandise. You contend that the skirt is not fully described by heading 6104, HTSUS, because the plastic sequins that are sewn onto the skirt are a “separate integral component” of the skirt. In your April 5, 2011, teleconference with this office, you argued that the sequins are a necessary component of the skirt that cannot be removed without harming the skirt. CBP does not agree with your contention and, as explained below, believes that heading 6104, HTSUS, completely describes the skirt with the additional sequins.
Heading 6104, HTSUS, provides for knitted girls’ skirts eo nomine (by name). An eo nomine provision includes “an article which has been improved or amplified but whose essential characteristic is preserved or only incidentally altered…”. See Wagner Spray Tech. Corp. v. United States, 31 C.I.T. 676, 680, quoting Casio, Inc. v. United States, 73 F.3d 1095, 1098 (Fed. Cir. 1996). Thus, heading 6104, HTSUS, provides for knitted girls’ skirts of all kinds whether or not they have been accessorized or decorated with various other items such as plastic sequins, so long as they retain the essential character of a knit skirt. This interpretation is consistent with the General EN to Chapter 61, which indicates that the classification of goods under that Chapter is not affected by the presence of parts or accessories, such as plastics, unless those parts or accessories constitute “more than mere trimming”.
The terms “accessory” and “trimming” are not defined in the HTSUS. When a term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). The courts have stated on many occasions that “[t]o ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.’” See e.g., Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)).
The meaning of the term “accessory” was addressed in Rollerblade v. United States, 24 C.I.T. 812, aff’d, 282 F. 3d 1349 (Fed. Cir. 2002). In this decision, the Court of International Trade addressed the relationship that a product must have with another product to qualify as an accessory to that primary object. Id. at 815 to 818. The court went on to hold that an accessory is a product that must have a direct relationship with the item being accessorized. Id. at 817. Moreover, the Court of International Trade offered a number of definitions of the term “accessory”. Id. at 815-816. Two of the definitions cited by the court are:
A thing of secondary or subordinate importance; adjunct; 1.b An object or device not essential in itself but adding to the beauty, convenience or effectiveness of something else. Webster’s Collegiate Dictionary 7 (2d Ed. 1977)
A subordinate or supplementary part, object or the like, used mainly for convenience, attractiveness, safety, etc. Random House Webster’s Unabridged Dictionary 11 (2d ed. 1998).
Id. Both of these definitions indicate that an accessory is an object which adds to the beauty, convenience, or effectiveness of the primary item. The accessorizing item is of secondary importance to the item that it accessorizes.
In addition, the term “trimming” is not defined. The Oxford English Dictionary defines the term “trimming” as “[a]dornment, decoration, dressing up…” or as “[a]ny ornamental addition to the bare fabric of a dress, etc.” Thus, trimming is an item added to a garment for decoration.
In this case, the sequins are sewn directly onto the fabric panels on the skirt’s outer shell. The fabric panels provide the skirt with its shape, color, and look. The sequins simply add sparkle to the garment. In your teleconference with my office you argued that the sequins are a necessary component of the skirt. However, after that call, attorneys in my office were able to quickly unstitch the sequins and remove them without destroying the underlying open face knit fabric. A picture of the resulting fabric is on the following page.
We find that this is evidence that the sequins are not an integral component to the skirt. Therefore, CBP finds that the sequins on the instant merchandise are “accessories” as defined above.
Having established that sequins are accessories, we must now determine whether they are “more than mere trimming.” See General EN to Chapter 61 of the Harmonized System. The sequins on the instant merchandise are simply ornamental additions that are added to the garment for decorative purposes. The sequins are not an essential component to make the item a skirt. As we stated earlier, the sequins can be removed from the skirt and the underlying textile material is not damaged allowing for the item to maintain its character as a skirt. Therefore, they are not more than mere “trimming”, as defined above. Instead, the sequins are merely decorations that are meant to improve or amplify the look of the skirt. Based on this, CBP finds that the merchandise is completely described by heading 6104, HTSUS.
Insofar as heading 6104, HTSUS, fully describes the garment, its classification in heading 3926, HTSUS is precluded. Indeed, classification in heading 3926, HTSUS, is not allowed because the garment is an article of Section XI, HTSUS. See Note 2(P) to Chapter 39, HTSUS. Therefore, classification by application of GRI 3(b) is prohibited because classification occurs at GRI 1 and the good is not prima facie classifiable in two or more headings. This conclusion is consistent with Headquarters Ruling Letter (HQ) 083354, dated August 22, 1989, wherein CBP concluded that a dress with sequins sewn onto it in non-overlapping rows was completely described by heading 6104, HTSUS, at the GRI 1 level.
Finally, Fun Dress argues that prior to issuing this ruling classifying this merchandise in heading 6104, HTSUS, CBP must modify or revoke HQ 960960, dated April 10, 2001. However, that ruling dealt with a garment that consisted of two different layers of textiles materials and required a different classification analysis. CBP determined that the good described in HQ 960960 was prima facie classifiable in two or more headings because the two layers were integral components that were necessary to make the item a camisole necessitating classification by application of GRI 3. In this case, the girls’ skirt is not prima facie classifiable in two or more headings as demonstrated above and classification can occur at GRI 1. The need for a classification analysis under GRI 3(b) is unnecessary.
In your teleconference with this office on April 5, 2011, you also argued that the sequins were similar to the suede components of the jacket discussed in HQ 083893, dated May 17, 1989, or other similar rulings. In HQ 083893, the U.S. Customs Service (CBP’s predecessor agency) determined that the suede material, which made up the entire front of the jacket, was an integral part of the material that made the jacket. Without the suede component, the article would have consisted of only the back half of the jacket, the sleeves, and most of the collar. As no single heading fully described that jacket because it contained non-textile components that were necessary to make the item a jacket, U.S. Customs properly applied GRI 3 to classify the good.
In this case, the sequins are not integral, as we noted above, because they can be removed without damaging the outer layer of the skirt. The sequins absence does not remove the garment’s character as a skirt. Therefore, the instant ruling will not modify or revoke HQ 960960 or HQ 083893 because these rulings are on substantially different products that require different analysis to determine their classification.
HOLDING:
By application of GRI 1, the instant merchandise is classified in heading 6104, HTSUS, and more specifically in subheading 6104.53.2020, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “[w]omen's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: [s]kirts and divided skirts: [o]f synthetic fibers: [o]ther… [g]irls’ (642)…” The 2011 column one, general rate of duty, is 16% ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch