OT:RR:CTF:FTM H326186 TJS
TARIFF NOS.: 6203.42.45, 6204.62.80, 6204.63.90
Mr. Rick Van Arnam Barnes, Richardson & Colburn, LLP 100 William Street, Suite 305 New York, New York 10038 RE: Affirmation of NY N323823; Classification of woven garments Dear Mr. Van Arnam, This is in response to your request for reconsideration, dated July 5, 2022, of New York Ruling Letter (“NY”) N323823, issued on April 13, 2022, which concerns the tariff classification of four styles of pants under the Harmonized Tariff Schedule of the United States (“HTSUS”). This request for reconsideration was filed on behalf of your client, Sanko Tekstil Isletmeleri San. Ve Tic. A.S. (“Sanko” or “Requestor”). For the reasons set forth below, we affirm NY N323823. You requested that certain information submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The items that you specified will not be released to the public and will be withheld from the published version of this decision. In NY N323823, U.S. Customs and Border Protection (“CBP”) classified four styles of men’s and women’s lower body garments, specifically, styles M05, M20, W04, and W09; determined that the country of origin marking on styles M05 and W09 were not acceptable; and noted that the submitted samples for styles M20, M05, and W09 were not properly marked with their fiber content. 1 Your request for reconsideration concerns the classification of only styles M05, W09, and W04. In NY N323823, CBP classified style M05 in subheading 6203.42.45, HTSUS, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace 1 CBP classified style M20 in subheading 6212.90.00, HTSUS, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other.”
overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Other: Other: Other.” Style W09 was classified in subheading 6204.62.80, 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): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Other: Other: Other: Other.” Style W04 was classified in subheading 6204.63.90, 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): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other: Other.” You request classification of styles M05, W09, and W04 under heading 6212, and specifically in subheading 6212.90.00, HTSUS, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other.” NY N323823 described the products at issue as follows: Style M05 is a pair of men’s trousers. In your letter, you state that the garment is constructed from 70% cotton, 21% polyester, and 9% elastane woven fabric. Style M05 features a sewn-on waistband with five belt loops, a leather patch with a company logo at the right back waistband through which a belt may be threaded, a zippered fly front opening with a metal button closure on the waistband, slant front panels, a sewn-in crotch panel that extends to the top of the lower leg, back patch pockets, tapered lower legs, and hemmed leg openings. According to CBP laboratory analysis, the sample of style M05 was determined to be of woven construction and 67.2% cotton, 23.8% polyester, 9% elastomeric in content. Style W09 is a pair of women’s trousers. In your letter, you state that the garment is constructed from 81.5% cotton, 8.5% elastane, and 10% polyester woven fabric.2 The trousers feature a waistband with six belt loops, a zippered fly front opening with a metal button closure, two front pockets, a watch pocket within the right front pocket, two rear patch pockets, and hemmed leg openings. According to CBP laboratory analysis, the sample of style W09 was determined to be of woven construction and 66.6% cotton, 23.4% polyester, 10% elastomeric fiber in content. Style W04 is a pair of women’s trousers. In your letter, you state that the garment is constructed from 86% polyester and 14% elastane woven fabric. The pull-on trousers extend from the waist to the ankles and feature a wide waistband and hemmed leg openings. According to CBP laboratory analysis, the sample of style W04 was determined to be of woven construction and 85.5% polyester, 14.5% elastomeric fiber in content. 2 In your request for reconsideration, you indicated that internal lab testing of style W09 determined the fiber content to be 69% cotton, 21% polyester, and 9% elastomeric. 2
The question in this case is whether the subject articles are classifiable as “similar articles” of heading 6212, HTSUS. The term “similar articles” appearing after a list of articles invokes the rule of ejusdem generis, which means “of the same kind.” In tariff 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.” Sports Graphics, Inc., v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994) (citing Nissho-Iwai Am. Corp. v. United States, 10 Ct. Int’l Trade 154, 157, 641 F. Supp. 808, 810 (1986)). In Victoria’s Secret Direct, LLC v. United States, 769 F.3d 1102, 1108 (Fed. Cir. 2014) (hereinafter “Victoria’s Secret”), the Court of Appeals for the Federal Circuit (“CAFC”), in applying the principle of ejusdem generis, determined that the unifying feature of the articles listed in heading 6212, HTSUS, is “the paramount function of support” and that the primacy of their support function “is not overridden by an additional outerwear coverage function so significant as to dominate or even to be of roughly the same importance as the support function.” The CAFC further indicated that while some garments provide body support, they cannot reasonably be considered “similar articles” under heading 6212, HTSUS, and specifically used certain jeans that “are designed to flatten, trim, and lift certain parts of the body” as one example. See id. The CAFC also affirmed the finding of the United States Court of International Trade with respect to the classification of two tops with built-in shelf-bras, known as the Bra Top and Bodyshaper, indicating that they “do not share the unifying characteristics of heading 6212” because “both garments are ‘designed for two purposes, coverage and support’.” Id. at 1109. Specifically, those two garments were “wearable in public without needing an additional layer” as evidenced by marketing materials. Id. Sanko indicates that it utilizes special patented woven compression technology to manufacture styles M05, W09, and W04 to provide graduated compression along the wearer’s appendage. Along with the request for reconsideration, compression test results concerning the subject style garments to indicate that the paramount function of the garments is the support was also submitted. In the request for reconsideration, the Requestor contends that while the subject garments “can function as outerwear” their “primary purpose…is to provide this long-term body and muscle support using graduated levels of compression.” Sanko notes that CBP has previously classified compression garments under heading 6212, HTSUS, and cite to the following rulings in support of this statement: Headquarters Ruling Letter (“HQ”) 966804, dated January 13, 2004, HQ 965621, dated October 16, 2002, and NY K83299, dated March 23, 2004. The garments subject in these three rulings were made of 80% polyester and 20% spandex and incorporated specially placed fabric panels designed to support localized muscles. HQ 966804 concerned a men’s long-sleeved pullover with mesh-like fabric strips sewn-in around the ribcage of the wearer designed to support the shoulders, back, respiratory muscles, and improve air exchange. In HQ 965621, CBP classified three corresponding men’s lower body garments that included fabric panels designed to support the lower body muscles, joints, and tendons. The garment in NY K83299 was a close-fitting lower body garment that extended from the waist to just below the knee and featured three 2-ply overlaid panels intended to simulate the taping of muscles and joints by providing support to 3
specific areas and thereby eliminating the need for taping or the use of a brace during physical activity. In each of these rulings CBP concluded that the garments were body supporting garments similar to those listed in heading 6212, HTSUS, even if the article was also wearable as outerwear. In making its decision, CBP looked at the design and functionality of the garments, as well as considered patent materials and product marketing in HQ 965621 and HQ 966804. CBP determined that the garments’ entire function and design were centered on providing support to particular muscles, joints, and ligaments during physical activity, serving as an alternative to taping or a wearing support brace. Accordingly, CBP classified the garments in heading 6212, HTSUS. Notably, HQ 966804, HQ 965621, and NY K83299 predate Victoria’s Secret. As a result of the Victoria’s Secret decision, when determining whether an article is similar to “brassieres, girdles, corsets, braces, suspenders, and garters” CBP ascertains whether the article’s paramount function is support. See, e.g., HQ H304008 (July 24, 2020) (finding a woman’s knit shapewear tank top did not have the essential purpose of body support). There is no dispute that the instant garments are designed for both coverage and support. The inquiry is whether the support function outweighs the outerwear function. Unlike in HQ 966804, HQ 965621, and NY K83299, the subject garments’ entire function and design are not concentrated on providing support. Like the example of the jeans in the Victoria’s Secret case, the subject garments resemble traditional outerwear pants that cannot reasonably be considered similar to “brassieres, girdles, corsets, braces, suspenders, and garters.” Syles M05 and W09 have features of traditional denim pants including a waistband with belt loops, a zippered fly front opening with a metal button closure, front slant pockets, and back patch pockets. Style W04 resembles traditional exercise leggings and includes a front inner pocket along the bottom of the waistband. The presence of these outerwear features indicates the garments are intended to be the outermost layer of clothing. Furthermore, an examination of the samples demonstrates that they do not provide a significantly tight or supportive fit. Rather, the garments fit like typical close-fitting jeans and exercise leggings. Even though the subject garments provide compression to the wearer’s body, the design of the garments including the outerwear features and fit, as a whole, negate the notion that support is their primary function. Additionally, the sales presentation materials (Revised Attachment A)3 that were provided to CBP in support of the initial ruling request, and which we presume to describe the instant garments, discuss the gradual compression capabilities of the garments, but they also categorize the garments as denim, lifestyle, sportswear, and workwear and show models wearing them without a need for additional layering. The hangtags on the samples mention the patented woven compression technology and physical benefits of the garments, such as improving blood circulation, sculpting, speeding up recovery, and reducing fatigue and risk of injury. The hangtags also emphasize the feeling that the garments will provide to the wearer, such as calm and peace and sharpened senses, and indicate that the garments may be worn for resting and running. The hangtags especially emphasize that the garments help the wearer “achieve a ‘State of Flow’” and define that term as “the optimal state of consciousness in which you feel your best and perform at your best.” We do not find that the hangtags convincingly suggest that the paramount purpose of the subject garments is support. 3 Sanko lifted the confidentiality with respect to this attachment on February 7, 2022, and confirmed on November 21, 2023, that the confidentiality request remains lifted with respect to this document. 4
Based on the sales presentation materials, hangtags, and a review of the samples, we find that the subject garments are primarily worn as outerwear that do not necessitate an additional layer, consistent with the Bra Top and Bodyshaper in Victoria’s Secret. We agree with the determination in NY N323823 that support is not the paramount function of the garments since their outerwear function is of at least equal importance to their support function. Therefore, the garments are not considered “similar articles” under heading 6212, HTSUS. In accordance with the foregoing, we affirm NY N323823, dated April 13, 2022, which correctly determined the tariff classification of the subject garments.
Sincerely,
Yuliya A. Gulis, Director Commercial and Trade Facilitation Division 5