OT:RR:CTF:FTM H304671 PJG
Diana Ferron
PVH
200 Madison Avenue
New York, New York 10016
RE: Revocation of NY N245655 and NY N100856; tariff classification of babies’ swimwear
Dear Ms. Ferron:
On September 12, 2013, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) N245655. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of two styles of babies’ swimwear, specifically, style numbers 7570512 and 7570513. We have since reviewed NY N245655 and determined it to be in error with respect to the classification of these products. Similarly, we have reviewed NY N100856, dated April 15, 2010, and determined it to be in error with respect to the classification of style GT210, which is a babies’ swim diaper. Accordingly, NY N245655 and NY N100856 are revoked. Specifically, NY N100856 is revoked by operation of law because it was issued before heading 9619, HTSUS, was introduced. It is now CBP’s position that style numbers 7570512, 7570513, and GT210 are classified in heading 9619.00, HTSUS.
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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on February 23, 2022, in Volume 56, Number 7, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N245655, styles 7570512 and 7570513 are described as follows:
Style 7570512 and Style 7570513 are babies’ swimwear with an interior diaper component. The outer shells and interior linings of both garments are constructed of polyester knit fabric. Between the outer shells and the interior linings is an interior layer of thin nylon woven fabric that has a polyurethane coating. The lining assists in preventing waste and bacteria from getting into the water. Style 7570512 is for boys. It has swim trunk styling and a fully elasticized waistband. The interior panty section is sewn into the interior waistband and has elasticized fabric at the leg openings. Style 7570513 is for girls. It has panty styling, a fully elasticized waistband with fabric bow and elasticized fabric at the leg openings. Both styles will be imported in babies’ sizes 6 to 18 months.
In NY N245655, CBP classified styles 7570512 and 7570513 in subheading 6111.30.5070, HTSUSA, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of synthetic fibers: Other: Other: Other.”
In NY N100856, style GT210 is described as follows:
Style GT210 is a babies’ swim diaper consisting of an outer shell and a detachable inner shell. The outer shell is constructed from 92% cotton, 8% spandex knit jersey fabric. The outer shell features elasticized leg openings, an elasticized waistband with hook and loop closures that fasten at the front of the diaper onto hook and loop strips, an embroidered g and ruffles on the front of the diaper. The detachable inner shell is constructed of a nylon woven polyurethane coated material and is held in place by four plastic snaps. The essential character of the garment is imparted by the knit outer shell.
In NY N100856, CBP classified style GT210 in subheading 6111.20.6070, HTSUSA, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of cotton: Other: Other.”
ISSUE:
Whether the subject babies’ swimsuits are classifiable in heading 6111, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted,” or in heading 9619.00, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material.”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined 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 may then be applied.
The HTSUS provisions under consideration are as follows:
6111 Babies’ garments and clothing accessories, knitted or crocheted:
9619.00 Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material:
GRI 3(a) and (b) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or
made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
Note 6 to Chapter 61 provides as follows:
For the purposes of heading 6111:
The expression “babies’ garments and clothing accessories” means articles for young children of a body height not exceeding 86 centimeters;
Articles which are, prima facie, classifiable both in heading 6111 and in other headings of this chapter are to be classified in heading 6111.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
The EN to GRI 3(b) states, in pertinent part:
(VI) This second method relates only to :
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
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(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which :
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
“Retail sale” does not include sales of products which are intended to be re-sold after further manufacture, preparation, repacking or incorporation with or into other goods.
The term “goods put up in sets for retail sale” therefore only covers sets consisting of goods which are intended to be sold to the end user where the individual goods are intended to be used together. For example, different foodstuffs intended to be used together in the preparation of a ready-to-eat dish or meal, packaged together and intended for consumption by the purchaser would be a “set put up for retail sale”.
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The EN to 96.19 states, in pertinent part:
This heading covers sanitary towels (pads) and tampons, napkins (diapers) and napkin liners for babies and similar articles, including absorbent hygienic nursing pads, napkins (diapers) for adults with incontinence and pantyliners, of any material.
In general, the articles of this heading are disposable. Many of these articles are composed of (a) an inner layer (e.g., of nonwovens) designed to wick fluid from the wearer’s skin and thereby prevent chafing; (b) an absorbent core for collecting and storing fluid until the product can be disposed of; and (c) an outer layer (e.g., of plastics) to prevent leakage of fluid from the absorbent core. The articles of this heading are usually shaped so that they may fit snugly to the human body. This heading also includes similar traditional articles made up solely of textile materials, which are usually re-usable following laundering.
This heading does not cover products such as disposable surgical drapes and absorbent pads for hospital beds, operating tables and wheelchairs or non-absorbent nursing pads or other non-absorbent articles (in general, classified according to their constituent material).
When considering the classification of apparel made up of woven and knit fabrics, guidance may be found in HQ memo 084118. In that memo, we stated with regard to upper body garments:
For upper or lower body garments, if one component exceeds 60 percent of the visible surface area, that component will determine the classification of the garment unless the other component:
forms the entire front of the garment; or
provides a visual and significant decorative effect (e.g., a substantial amount of lace); or
is over 50 percent by weight of the garment; or
is valued at more than 10 times the primary component.
If no component comprises 60 percent of the visible surface area, or if any of the above four listed conditions are present, classification will be according to GRI 3(b) or 3(c), as appropriate.
Section XI, Note 1(u), HTSUS, provides that Section XI, which includes Chapters 61 and 62, HTSUS, does not cover “[a]rticles of chapter 96 (for example, brushes, travel sets for sewing, slide fasteners, typewriter ribbons, sanitary towels (pads) and tampons, napkins (diapers) and napkin liners for babies).” Therefore, first, we must consider whether styles 7570512 and 7570513 are classifiable in Chapter 96, HTSUS.
Classification of style 7570513
First, we will address the classification of style 7570513, which is a baby girls’ panty style swimwear with an interior diaper component and a fully elasticized waistband and elasticized leg openings. In NY N070405, dated August 3, 2009, CBP found that the cotton terry knit crotch with polyurethane laminate barrier that was designed to retain waste imparted the essential character to the babies’ swim diapers that were comprised of different materials. In style 7570513, the waste retention is accomplished with the absorption qualities of the polyester knit fabric and the thin nylon woven fabric that has a polyurethane coating.
In the 2012 Basic Edition of the HTSUS, heading 9619, HTSUS, was introduced to provide for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material.” The diaper component of style 7570513 fits the description provided by EN 96.19 for articles that are classifiable in heading 9619, HTSUS, because it is composed of (a) an interior lining of polyester knit fabric that helps wick the fluid from the babies’ body and prevents chafing; (b) an absorbent component (the textile composition of which we are unaware) that collects and stores the fluid until the product can be washed and reused; (c) a layer of thin nylon woven fabric that has a polyurethane coating to prevent leakage of the fluid and bacteria from the absorbent core; and (d) the diaper component is designed to fit snugly to the baby’s body. We conclude, therefore, that style 7570513 is classifiable in heading 9619.00, HTSUS, as “similar articles.”
Since the diaper component of style 7570513 is comprised of different materials, specifically, polyester knit fabric, nylon woven fabric with polyurethane coating, and the textile composition of the absorbent component, the appropriate subheading for the subject merchandise cannot be determined pursuant to GRI 1. GRI 2(a) does not provide assistance and in accordance with the guidance provided by GRI 2(b), “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” Applying GRI 3(a) in the context of the subheading, we find that more than two subheadings, specifically, subheading 9619.00.64, HTSUS (Knitted; Of man-made fibers), subheading 9619.00.74, HTSUS (Other; Of man-made fibers), and subheading 9619.00, HTSUS (the eight digit subheading would depend upon the textile composition of the absorbent component), refer to only part of the materials that comprise the subject merchandise. As such, we refer to GRI 3(b), which states that “[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” In HQ H271286, dated April 4, 2017, we stated that the absorbent component imparts the essential character to articles of heading 9619, HTSUS.
In the instant case, we do not have information concerning the textile composition of the absorbent component of style 7570513. As such, style 7570513 we can only provide the classification of this product at the six-digit level, specifically, in subheading 9619.00, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials.”
Classification of style 7570512
Second, we will address the classification of style 7570512, which is a baby boys’ trunk style swimwear with an interior diaper component and a fully elasticized waistband. The diaper component is sewn into the interior waistband and has elasticized fabric at the leg openings.
Initially, we must consider whether the garment is swimwear or shorts. The Court of International Trade (“CIT”) held in Hampco Apparel, Inc. v. United States, 12 Ct. Int’l Trade 92, 95 (1988), that we must look at the following features and, if all are present, then the garment is swimwear and not shorts:
whether the garment has a elasticized waistband through which a drawstring is threaded;
whether the garment has an inner lining of lightweight material, namely, nylon tricot; and
whether the garment was designed and constructed for swimming.
While style 7570512 has an elasticized waistband, it does not have a drawstring, therefore, style 7570512 is shorts and not swimwear for classification purposes.
Since style 7570512 is a lower body garment made from both woven and knit fabrics, the merchandise is classifiable in heading 6111, HTSUS (knit), or 6209, HTSUS (woven), and we must consider HQ memo 084118. In accordance with HQ memo 084118 section (a)(3), we needed to determine the weights of the knit and woven components. We do not have a sample of the merchandise to determine the weights of the knit and woven components, however, in the instant case, style 7570512 also has an absorbent component that we must consider under a GRI 3(b) analysis in classifying the merchandise.
For the same reasons discussed above for style 7570513, style 7570512 is classified at the six-digit level in subheading 9619.00, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials.”
HOLDING:
Under the authority of GRIs 1, 3(b), and 6, style 7575013 is classified in subheading 9619.00, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials.”
Under the authority of GRIs 1, 3(b), and 6, style 7575012 is classified in subheading 9619.00, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials.”
EFFECT ON OTHER RULINGS:
NY N245655, dated September 12, 2013, is REVOKED.
NY N100856, dated April 15, 2010, is REVOKED by operation of law. The essential character of style GT210 is based on the absorbent component and the merchandise is classified at the six-digit level in subheading 9619.00, HTSUS. Further information concerning the textile composition of the absorbent component would be necessary to determine the classification of the merchandise beyond the six-digit level and to determine the appropriate duty rate.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division