CLA-2-RR:CR:TE 966816 SG
David J. Evan, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 245 Park Avenue, 33rd floor
New York, New York 10167-3397
RE: Reconsideration of New York Ruling Letter (NY J86997, dated August 28, 2003); Classification of Women’s "Beach Cover-ups"
Dear Mr. Evan: This is in response to your letter of October 24, 2003, on behalf of your client Mast Industries, Inc., requesting reconsideration of New York Ruling Letter (NY) J86997, dated August 28, 2003, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain women’s garments which you identify as "beach cover-ups". Samples of the 5 garments were submitted. Also submitted were pages from a "Victoria's Secret" swim catalog.
FACTS: The submitted garments are: Style 161-730 is a cropped cardigan constructed from 80 percent cotton, 20 percent polyester terry knit fabric with more than nine stitches per cm in the horizontal direction. The cardigan features a full front opening with a zipper closure (a turtleneck is formed when completely zipped), long raglan sleeves with cuffs, 2 zippered slash pockets, and a banded bottom which reaches the waist. This garment is pictured on page 5 of the catalog. Style 161-717 is a pair of trousers constructed from 80 percent cotton, 20 percent polyester terry knit fabric. The Capri length pull-on pants have a covered elasticized waistband with a fully functioning drawstring, and a hemmed bottom. This pant is pictured in the "Victoria Secret" catalog pages submitted, and when worn the waistband sits slightly below the navel.
Style 162-573 is a mini-skirt constructed from 93 percent nylon, 7 percent spandex terry knit fabric. The skirt has a covered elasticized waistband with a fully functioning
drawstring and a hemmed bottom. The garment measures approximately 12 inches from the top of its waistband to its hemmed bottom.
Style 161-585 is a pair of trousers constructed from sheer 100 percent nylon knit fabric. The pants have a narrow elasticized waistband with an "O" ring at the center front, and hemmed leg openings. This pant is pictured in the "Victoria Secret" catalog pages submitted, and when worn the waistband sits slightly below the navel.
Style 159-150 is a pair of trousers constructed from sheer 100 percent woven polyester georgette fabric. The pants have a front opening with a tie closure and hemmed leg openings. This pant is pictured in the "Victoria Secret" catalog pages submitted, and when worn the waistband sits slightly below the navel.
In NY J86997, the cardigan, style 161-730, was classified in subheading 6110.20.2075, HTSUSA, which provides for "Sweaters and similar articles…knitted or crocheted: Of cotton: Women’s." The applicable subheading for the miniskirt, which appears to have been incorrectly identified as style 162-572, was determined to be 6104.53.2010, HTSUSA, the provision for "Women’s…skirts…knitted or crocheted: Of synthetic fiber." The applicable subheading for the trousers, style 161-717, was determined to be 6104.62.2011, HTSUSA, which provides for "Women’s…trousers…knitted or crocheted: Of cotton. The applicable subheading for the pants, style 161-585, was determined to be 6104.63.2011, HTSUSA, the provision for "Women’s…trousers…knitted or crocheted: Of synthetic fiber." The pants, style 159-150, were classified in subheading 6204.63.3510, HTSUSA, the provision for "Women’s…trousers: Of synthetic fiber."
It is your contention that all five garments are designed, manufactured, marketed, and intended to be used as "beach cover-ups" and pursuant to Mast Industries v. United States, 9 CIT 549 (1986), aff'd, 786 F.2nd 1144 (1986) are classifiable under the provisions which cover beach robes (HTS headings 6108 and 6208) and not as sportswear items. In the alternative, you argue the lower body garments should be classified within HTS headings 6114 and 6211.
ISSUE: What is the proper classification of the subject merchandise?
LAW & ANALYSIS
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides that classification 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither binding nor dispositive, the EN 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.
Following GRI 1, there are a number of headings under consideration: heading 6108, HTSUS, which provides for, inter alia, women’s knitted bathrobes, dressing gowns, and similar articles; heading 6110, HTSUS, which provides for, inter alia, women’s knitted sweaters, pullovers and similar articles; heading 6104, HTSUS, which provides for, inter alia, women's knit skirts or pants; and heading 6204, HTSUS, which provides for, inter alia, women's woven trousers. In the alternative, it is suggested that style 161-717 might be classified in subheading 6114.20.0060, HTSUSA, styles 162-573 and 161-585 in subheading 6114.30.3070, HTSUSA, and style 159-150 in subheading 6211.43.0091, HTSUSA, as other garments.
Heading 6108, HTSUSA, provides for "Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted." The EN provide the following relevant guidance as to the scope of heading 6108: This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely . . . and nightdresses, pyjamas, negliges, bathrobes (including beachrobes), dressing gowns and similar articles.
The term "bathrobe" is not defined in any section or chapter notes to the HTS. In the absence of contrary legislative intent, tariff terms are to be construed in accordance with their common and popular meaning. In ascertaining common meanings, it is proper to consult standard lexicographic and scientific authorities, dictionaries, and other reliable sources. The American Heritage Dictionary of the English Language, 2000 edition, defines "bathrobe" as "a loose fitting robe worn before and after bathing." The term "robe" is defined as "a long loose flowing outer garment."
In a recent informed compliance publication "What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUSA", Customs and Border Protection (CBP) provided basic definitions of apparel terms that are commonly utilized in the HTSUSA and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. The informed compliance publication describes bathrobes, dressing gowns,
negligees and similar articles (6107, 6108, 6207, 6208) as "a group of garments worn in the home for comfort, which are inappropriate for wear on social occasions in or outside
the home. These garments have the following physical characteristics: 1) looseness, 2) length reaching to the mid-thigh or below, 3) usually a full or partial front opening, with or without a means of closure. Sleeves are usually, but not necessarily, present, as in the case of women's bath wraps (men's bath wraps, which usually cover only the lower torso, are classified in heading 6114 or 6211)."
Furthermore, reference to The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (Guidelines) is appropriate in this case. The Guidelines were developed and revised in accordance with the HTSUSA to ensure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles. The Guidelines state the following to describe the characteristics of dressing gowns, which include 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.
Specifically excluded by the Guidelines are those garments worn as street attire.
In HQ 964641, dated May 21, 2001, CBP stated the following in discussing beachrobes: "'beachrobes', included in the parenthetical following bathrobes, have the same features and functions as bathrobes, although they are worn in a different setting. They are 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. "
It is your view, as documented in the submitted pages from the "Victoria Secret" swim catalog, that the garments at issue possess the same characteristics and functionality as beach robes. You assert that they also coordinate with the wearer's swimsuit and are meant to be worn over swimwear. You indicate that they provide coverage for modesty, absorb water, and protect the body from sun, the same way traditional beach robes do.
In your submission you make the point that the garments fit within the definition for robes, that current fashion trends have expanded the term, and that the garments are advertised as cover-ups with swimwear. You note that Fairchild's Dictionary of Fashion
(2nd ed. 1998) includes beach togas and beach wrap-ups under the heading for robes. Based on this you conclude that the term "robe" refers to "cover-up" garments which may cover either the upper and/or lower torso.
We do not agree. We note that robes, including both beach togas and beach wrap-ups, cover the entire torso, not just the lower torso. We also note that a man's terry bath wrap is classified as an other garment because it only covers the lower torso. None of the items before us cover the entire torso. In addition, not all beach items are grouped in the robe area of Fairchild's. For example:
Beachwear. Items of apparel or accessories specifically for use at the beach. See dressses, hats, ponchos, robes, swimsuits, and wigs.
Beach shift. Simple cover-up designed to be worn over a bathing suit, often in matching fabric. Also called a beach dress.
We note that your submission completely ignores an entire range of garments that are, like the beach shift, items of apparel specifically for use at the beach, often designed to be worn over or with swimwear, to allow the wearer to be appropriately dressed in areas of a resort or cruise ship, or shops along a boardwalk, other than when actually on the beach or at a pool, while not getting fully dressed. Therefore, a distinction should be made between garments designed to be worn over or with swimwear that are beach robes or similar, and those that are casual wear.
In this case, you argue that all 5 of the garments are designed with the intention that they be sold and used as beach cover-ups. The garments are said to be loose fitting, made with absorbent terry cloth material or sheer lightweight fabric which serve to protect the body, absorb water, provide warmth, and cover the body for modesty purposes, features which you state are typical of beach cover-ups. In support thereof you cite HQ 965874, dated February 6, 2003, in which CBP reclassified various garments (pullovers, cardigans, and dress type items) as beach cover-ups. Based on this you argue that each garment is clearly designed to be worn over swimsuits.
In HQ 965874, the subject garments all extended from the shoulder to the mid-thigh; none of the garments were pants. The garments all served to absorb water and provided warmth. CBP determined that the simple design, looseness and length of each of the garments were typical features of beach cover-up garments. That is not true of the garments at issue here. None of the garments extend from the shoulder to the mid-thigh. Your July 28, 2003, request for a ruling identifies styles 161-717, 161-585, and 159-150 as "beach pants". Neither the mini-skirt nor the pullover garment is
loose. In addition, only the terry cloth articles can absorb water or provide warmth. Accordingly, HQ 965874 is not precedent for the garments before us.
In addition you indicate that the garments are ordered, marketed, promoted and sold as women's beach cover-ups as documented in the "Victoria Secret" catalog. You indicate that the garments are offered with coordinating swimsuits, and the entire line of swimwear and cover-ups are displayed together within the "Victoria's Secret" swimwear catalog. In sum, you state that the garments will be designed, ordered, marketed and sold as beach cover-ups.
None of the garments bear all 4 of the characteristics, as set forth above, for beach robes-specifically length, extending from the shoulder to mid-thigh or below. Only the cardigan has sleeves or any upper body coverage, however the cardigan does not reach the mid-thigh. The remaining garments cover only the lower portion of the body. Nor do any of the five garments meet the dictionary definition for "robes" as they are not "long loose flowing outer garments". You indicate that the subject garments are made with absorbent terry cloth material or sheer lightweight fabric, which serve to protect the body, absorb water, provide warmth, and cover the body for modesty purposes-features
which you state are typical of beach cover-ups. We note that only the terry cloth pants, mini-skirt, and cropped jacket serve to absorb any water and each provides a degree of warmth. However, the garments made of sheer lightweight fabric do not. The definitions of robes do not require that they cover the body for modesty purposes. Accordingly none of the garments are robes per se, nor do we believe they have the physical characteristics of similar apparel. Although these articles could be used while at the beach, it is our view that they would normally be used for lounging, resting, or similar informal wear at home, at a resort, poolside, along the boardwalk, or at beach areas (stores, restaurants, etc.).
CBP indicated in HQ 962385, dated July 27, 1999, wherein CBP classified a women’s robe in heading 6108, HTSUS, that a crucial factor in the classification of a garment is the garment itself. 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 that 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.
Although the garments are not in our view ambiguous, we have reviewed the pages from the "Victoria Secret" catalog that you submitted. Only the cropped jacket and O-ring pant are identified exclusively as "cover-ups" in the catalog. Both the catalog and the "Victoria Secret" online shop identifies the other pants before us as cabana pants and describes them as casual beachwear which coordinate with the Miracle Bra™
swimwear. The web cite calls the miniskirt a terry skirt and describes it as terry spawear. All the garments at issue here are called "swim separates" in the catalog. We
note that the cropped pant (style 161-717) is described as a "swim separate" on one page of the catalog and as a "cover-up" on another. The court in Mast observed that
most consumers use a garment in the manner in which it is marketed. In our view the marketing of these garments is not as beach robes. Consequently, it is our view that the apparel at issue is casual wear and not classifiable as bathrobes, dressing gowns or similar garments.
You set forth the argument that alternatively, the bottoms are classifiable in HTS headings 6114 and 6211. You indicate that the bottoms provide coverage for the lower body at the beach or pool, the same way sarongs do; and that like sarongs, these items are inappropriate for use in social occasions for modesty reasons and are not properly classifiable as sportswear items. In support thereof you cite NY I87485, dated November 15, 2002, and PD B89709, dated October 8, 1997. In NY I87485, the garment was described as wrapping around the body as either a dress or a skirt. It covered the entire torso, not just the lower body as the bottoms before us do. In addition, we note that in HQ 959581, dated January 1, 1999, we classified a girl's knitted sarong under the provision 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: Skirts and divided skirts: Of synthetic fibers: Other; Girls'" subheading 6104.53.2020, HTSUSA.
Although you state that the bottoms at issue are inappropriate for use in social situations for modesty reasons, you provide no support or rationale for that statement. Styles 159-150 and 161-585 are made of sheer fabric, we assume your modesty claim is based on this. The sheerness and hence modesty argument falls short when one considers that other garments, for instance, white linen trousers or certain women's blouses, may be considered sheer. This factor simply requires the donning of appropriate undergarments. In addition, in HQ 951217, dated April 14, 1992, we determined that sheerness per se does not preclude use of the garment as a blouse. By analogy it is our view that sheerness per se does not preclude the use of these
garments as pants. Insofar as styles 161-717 and 162-573 are concerned, they are made of terry cloth, so sheerness is not a factor.
In the event that merchandise is not found to be classifiable under a specific heading, it is then classified as "other." The "other," or "basket," provision of a heading should be used only if there is no tariff category that more specifically covers the merchandise. See DMV USA v. United States, Slip. Op. 2001-99, 9 (C.I.T. August 10, 2001), citing Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247, 1251 (C.I.T. 2000); see also GRI 3(a) ("The heading which provides the most specific description shall be preferred to headings providing a more general description.").
Thus it is clear that classification in the heading providing for other garments is only appropriate when there is no previously occurring tariff provision that covers the garments more specifically. As we stated above, styles 161-717, 161-585, and 159-150 are trousers, and style 162-573 is a skirt. Trousers are specifically described in headings 6104 and 6204, HTSUS. Knit skirts are specifically described in 6104, HTSUS. Headings 6114, and 6211, HTSUS, describe "other garments" and are both basket provisions. Therefore, headings 6104 and 6204, HTSUS, provide more specific descriptions of the garments in question. Accordingly, the trousers styles 161-717 and 161-585 are classified in heading 6104, HTSUS, and the trousers style 151-150 are classified in heading 6204, HTSUS. The skirt is classified in heading 6104, HTSUS. The cardigan is classified in heading 6110, HTSUS.
HOLDING:
NY J86997, dated August 28, 2003, is hereby affirmed.
The applicable subheading for the cardigan will be 6110.20.2075, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: of cotton: other: other: other: women’s or girls'. The column one general duty rate will be 16.5 percent ad valorem. The cardigan falls within textile category designation 339
The applicable subheading for the skirt will be 6104.53.2010, HTSUSA, which provides for women’s or girls’ skirts, knitted or crocheted, of synthetic fibers, other, women’s. The general column one rate of duty will be 16 percent ad valorem. The skirt falls within the textile category designation 642. The applicable subheading for the pants style 161-717 will be 6104.62.2011, HTSUSA, which provides for other women’s trousers and breeches: knitted or crocheted: of cotton: other: women's. The general column one duty rate will be 14.9 percent ad valorem. These pants fall within textile category designation 348.
The applicable subheading for the pants style 161-585 will be 6104.63.2011, HTSUSA, which provides for other women’s trousers and breeches: of synthetic fibers: other. The general column one duty rate will be 28.2 percent ad valorem. These pants fall within textile category designation 648.
The applicable subheading for the pants style 151-150 will be 6204.63.3510, HTSUSA, which provides for women’s trousers of synthetic fibers. The general column one duty rate will be 28.6 percent ad valorem. The trousers fall within textile category designation 648.
The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board
(CEBB) which is available now on the Customs and Border Protection Web site at www.cbp.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact its local CBP office prior to importation of this merchandise to determine the
current status of any import restraints or requirements.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division