OT:RR:CTF:FTM H306760 MJD
Assistant Center Director
Apparel, Footwear, & Textile CEE
U.S. Customs and Border Protection
1100 Raymond Blvd.
Newark, NJ 07102
Attn: Kathleen Cheney, Supervisory Import Specialist; Jason Lemieux, Import Specialist
RE: Internal Advice Request; Tariff Classification of Women’s Garments
Dear Assistant Center Director:
This is in response to the internal advice request, dated October 24, 2019, initiated by Exist Inc. (“Exist” or “the importer”), concerning the tariff classification of several women’s garments under the Harmonized Tariff Schedule of the United States (“HTSUS”). The garments consist of the following: a top and shorts set identified as style 1710, a dress identified as style LSD7315, pants identified as style LP6064, and a top identified as style LS6414. Our decision is set forth below.
FACTS:
The merchandise at issue concerns several women’s garments that the importer states are meant to “be worn over bathing suit[s] while lounging by the beach or at the pool.” Style 1710 is described as a cover-up set consisting of a top and shorts. The garments of the set are composed of 100 percent polyester mesh knit fabric. The top is a long sleeve crop top that does not reach the waist and features a scoop front neckline and a hemmed bottom. The garment has sufficient bust coverage. The pull on shorts have a 1.5-inch elasticized waistband and hemmed leg openings. Exist argues that the top is classified in subheading 6108.92.0030, HTSUSA (Annotated), which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of man-made fibers: Other: Women’s.” The shorts are classified in subheading 6104.63.2030, HTSUSA, 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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Shorts: Women’s.”
Style LSD7315 is described a women’s dress cover-up. The dress is composed of 100 percent polyester openwork mesh knit fabric. It is sleeveless and features a finished front scoop neckline, a finished racer back panel, finished armholes, and a hemmed bottom extending above the mid-thigh all the way around. Exist argues that the dress is classified in subheading 6108.92.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of man-made fibers: Other: Women’s.”
Style LS6414 is described as a women’s top cover-up. The top is composed of 100 percent polyester mesh knit fabric. It is a short sleeve crop top that does not reach the waist and features a scoop front neckline and a hemmed bottom. The garment has sufficient bust coverage. Exist argues that the top is classified in subheading 6108.92.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of man-made fibers: Other: Women’s.”
Style LP6064 is described as a women’s pants cover. The pull on pants are 100 percent polyester mesh knit fabric. It features a 1.5-inch elasticized waistband and hemmed leg openings. Exist argues that the pants are classified in subheading 6104.63.2030, HTSUSA, 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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Shorts: Women’s.”
ISSUE:
What is the tariff classification of women’s garments at issue (styles 1710, LSD7315, LS6414, and LP6064)?
LAW AND ANALYSIS:
Classification decision 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 based on 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 2019 HTSUS provisions under consideration are as follows:
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:
Dresses:
6104.43: Of synthetic fibers:
6104.43.20: Other…
6104.43.2010: Women’s…
Trousers, bib and brace overalls, breeches and shorts:
6104.63: Of synthetic fibers:
Other:
6104.63.20: Other…
Trousers and breeches:
Women’s:
6104.63.2011: Other…
Shorts:
6104.63.2030: Women’s…
* * * * *
6108: Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
Other:
6108.92.00: Of man-made fibers…
Other:
6108.92.0030: Women’s…
* * * * *
6114: Other garments, knitted or crocheted:
6114.30: Of man-made fibers:
6114.30.10: Tops…
6114.30.1020: Women’s or girls’…
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN for heading 61.08 states, in pertinent part:
This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely slips, petticoats, briefs, panties and similar articles (underclothing) and nightdresses, pajamas, négligés, bathrobes (including beachrobes), dressing gowns and similar articles.
* * * * *
Cover-ups, while not enumerated in heading 6108, HTSUS, are “similar articles” to bathrobes and beachrobes, classified in heading 6108, HTSUS, under the principle of ejusdem generis, which means of the same kind. The principle of ejusdem generis provides that where specific words of description are followed by a general word or phrase, the general word or phrase will refer to the specific words of description. See Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995). Therefore, cover-ups are ejusdem generis with bathrobes and beachrobes. See Headquarters Ruling Letter (“HQ”) 964641, dated May 21, 2011, which provides that bathrobes and beachrobes, while worn in different settings, are “both designed to be worn after the wearer has been in the water. They absorb water, provide warmth, protect the body, and cover the body for modesty purposes.” As a result, cover-ups classified in heading 6108, HTSUS, have the same qualities.
The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, C.I.E. 13/88, November 23, 1988 (“Guidelines”), state the following regarding the physical characteristics of “dressing gowns, including bath robes, beach robes, lounging robes and similar apparel:”
Physical characteristics, which are expected in garments included in this category include:
Looseness.
Length, reaching to the mid-thigh or below.
Usually a full or partial opening, with or without a means of closure.
Sleeves are usually, but not necessarily, present.
The importer provides that the top of style 1710, the top of style LS6414, and the dress of style LSD7315 are bathing suit cover-ups classified in heading 6108, HTSUS, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles knitted or crocheted.” The importer also provides that the shorts of style 1710 and the pants of style LP6064 are classified in heading 6104, HTSUS, which provides for “Women’s or girl’s 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 HQ 088266, dated March 22, 1991, CBP classified a women’s knit cover-up in subheading 6108.91.0030, HTSUSA. The garment considered was designed as loose fitting, with short sleeves, and extended from the shoulder to the mid-thigh or below. Notwithstanding that the garment lacked a full or partial opening, CBP determined that it was properly classified in heading 6108, HTSUS, as a beach cover-up. In that ruling, CBP noted that the full or partial opening characteristic is prefaced with the term “usually,” which meant it was not absolutely required.
CBP indicated in HQ 962385, dated July 27, 1999, that a crucial factor in the classification of a garment is the garment itself. See HQ 962385, wherein CBP classified a women’s robe in heading 6108, HTSUS. As stated in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), at 552, “the merchandise itself may be strong evidence of use.” When presented with a garment, which is ambiguous in appearance, CBP looks to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. In HQ 962385, we noted that these factors should be considered in totality and that no one factor is determinative of classification.
In this case, we note that the first two requirements in the Guidelines, that the garment be loose and reach the mid-thigh or below, are mandatory requirements. The last two requirements, that the garment have a full or partial opening and sleeves, are not mandatory requirements as they are prefaced by the word “usually.” See HQ 088266. We note that none of the garments at issue here satisfy the first two mandatory requirements of the guidelines because they are not loose garments, nor do they reach the mid-thigh or below. In regards to the second requirement of the Guidelines that the garments reach the mid-thigh length or below, while the dress appears to be mid-thigh on the photos provided by the importer, it is not mid-thigh nor below mid-thigh on the standard sized mannequin. As per HQ H293112, dated April 26, 2018, classification of a garment is determined by placement on standard sized forms or mannequins. In HQ H293112, CBP stated that in order to main consistency when classifying garments, they “cannot rely on photos of garments worn by different body types. Instead, CBP must rely on the mannequins to measure certain elements of the garment that would influence its classification. The mannequins used by CBP are standard sizes.” In addition, the tops are neither mid-thigh nor below mid-thigh, as they do not go past the waist. Regarding the last two requirements, none of the garments has a full or partial opening, and only the top of style 1710 and the top of style LS6414 have sleeves. Based on the aforementioned, we find that none of the garments at issue here meets the qualifications of the Guidelines. Moreover, shorts, tops, and pants are not the type of garments contemplated by heading 6108, HTSUS, as cover-ups. See HQ 966816, dated May 19, 2004 (finding that garments in that case were not beach cover-ups, in part, because they did not extend from the shoulder to the mid-thigh.)
Additionally, while the garments here are advertised by the importer as cover-ups that are designed “to be worn over bathing [suites] while lounging by the beach or at the pool,” that does not mean the garments are classified in the tariff as such. Since cover-ups are similar articles to beachrobes and bathrobes, they need to be worn after the wearer has been in the water. See HQ 964641. We can infer from HQ 964641 that the reason that cover-ups are designed to be worn after the wearer has been in the water is because the cover-ups assist with absorbing water. In the instant case, there is no evidence that any of the garments absorb water. In HQ 965748, dated December 2, 2002, CBP found that the net design of a beach robe, while not absorbent, was breathable and allowed the garment to dry more efficiently. The same could be said of the knit mesh fabric of the garments in this case, however, unlike the garment in HQ 965748 that met all four requirements of the guidelines, the garments in this case do not. Moreover, CBP has previously held that the absorbent nature of beach robes and therefore cover-ups is not a determinative criteria. See HQ 965748. In addition, none of the garments appears to provide warmth, protect the body, or cover the body for modesty purposes due to the mesh knit fabric of the garments.
In HQ 965874, dated February 6, 2003, CBP found that garments in that case were classified as beach cover-ups in heading 6108, HTSUS. All of the garments were loose fitting, reached the mid-thigh of the body, and some of the garments had sleeves and others did not. CBP stated that the garments were intended to be worn as beach cover-ups and that they were marketed as such. It was unlikely that the garments would be worn as anything other than beach cover-ups. Moreover, the beach cover-ups, to a certain degree, absorbed water and provided warmth. The fact that the garments in this case are intended to be worn as cover-ups at the beach or pool, and arguably may not be worn in any other setting, is secondary to the fact that the garments do not meet the characteristics specified in the Guidelines, especially the first two mandatory characteristics, that the garments be loose and have a length that reaches the mid-thigh or below, unlike the garments in HQ 965874. Furthermore, the garments in HQ 965874 provided warmth and absorbed water to a certain degree, unlike the garments in this case. Therefore, based on the aforementioned, we do not find that the top of style 1710, the shorts of style 1710, the top of style LS6414, the pants of style LP6064, and the dress of style LSD7315 are bathing suit cover-ups classified under heading 6108, HTSUS.
Instead, we find that the garments are casual wear classified more specifically elsewhere in the tariff. According to Note 14 of Section XI, HTSUS, which covers the chapters for textiles and textiles articles, “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. For the purposes of this note, the expression ‘textile garments’ means garments of headings 6101 to 6114 and headings 6201 to 6211.” Therefore, each garment at issue here will be classified separately. CBP’s Informed Compliance Publication (“ICP”) on the “Classification: Apparel Terminology under the HTSUS,” while not legally binding, provides guidance on classifying apparel in the tariff. The ICP provides that tops “are upper body garments that are not included more specifically in headings 6101-6113. Tops generally have limited coverage of the neck and shoulder area, and/or do not reach the waist.” The garments of style LS6414 and style 1710 meet the definition of a top as stated in the ICP. They are upper body garments that are not provided more specifically in headings 6101-6113, HTSUS, they have a scoop front neckline, which provides for limited coverage of the neck area, and do not reach the waist, as they are crop top styled garments. As a result, the style LS6414 top and the style 1710 top are classified in subheading 6114.30.1020, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Tops: Women’s or girls’.” See HQ 966052, dated February 12, 2003; NY N287544, dated July 18, 2017; NY N022009, dated February 7, 2008; and NY N234166, dated November 5, 2012 (classifying crop tops under heading 6114, HTSUS).
Next, the garment of style LSD7315 is considered a dress. The ICP provides the following regarding dresses:
[Dresses are] one-piece garments for women or girls, covering the top of the body and extending to the mid-thigh vicinity and below. Fashion trends have also produced dresses of shorter length. Dresses are appropriate for wear without other outer garments, and their lower end encloses both legs in a single “tube” (rather than in two, as trousers do).
The garment of style LSD7315 fully conforms to the ICP description of a dress. It is a one-piece garment, which encloses both legs in a single “tube,” and while its length is above the mid-thigh, the ICP allows for shorter lengths for dresses. Therefore, the style LSD7315 garment is classified as a dress in subheading 6104.43.2010, HTSUSA, 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), knitted or crocheted: Dresses: Of synthetic fibers: Other: Women’s.”
The bottoms of style 1710 and style LS6414 are also classified as casual wear in the tariff. The style 1710 shorts are classified in subheading 6104.63.2030, 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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Shorts: Women’s.” The style LS6414 pants are classified in subheading 6104.63.2011, HTSUSA, 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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Trousers and breeches: Women’s: Other.” It should be noted that although the garments are composed of mesh knit fabric, they are still classified as casual wear. See NY E88239, dated October 14, 1999 (classifying a two-piece polyester mesh top and short set met to be worn over a swimsuit under heading 6110, HTSUS, and heading 6104, HTSUS, respectively.)
Accordingly, we find that the style 1710 top and shorts, the style LS6414 top, the style LP6064 pants, and the style LSD7315 dress are not classified as bathing suit cover-ups, but as casual wear garments.
HOLDING:
By application of GRI 1, we find that the style LS6414 top and the style 1710 top are classified in subheading 6114.30.1020, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Tops: Women’s or girls’.” The 2019 column one, general rate of duty is 28.2% ad valorem.
The style 1710 shorts are classified in subheading 6104.63.2030, HTSUSA, 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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Shorts: Women’s.” The 2019 column one, general rate of duty is 28.2% ad valorem.
The style LP6064 pants are classified in subheading 6104.63.2011, HTSUSA, 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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Trousers and breeches: Women’s: Other.” The 2019 column one, general rate of duty is 28.2% ad valorem.
The style LSD7315 dress is classified in subheading 6104.43.2010, HTSUSA, 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), knitted or crocheted: Dresses: Of synthetic fibers: Other: Women’s.” The 2019 column one, general rate of duty is 16% ad valorem.
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 online at www.usitc.gov. You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division