This week we feature guest author Ashleigh Fyman, U.S. Trade Advisory Consultant for Tradewin. Since 1997, Tradewin has been providing expert import and export advice to clients all over the world. Combined, their skilled team of Customs brokers, lawyers, accountants, and other professionals possess more than 400 years of experience. Together, they have helped thousands of clients save more than $50 million in duties, guiding them through the ever-changing and complex arena of international regulations as effortlessly as possible. Tradewin is a wholly-owned subsidiary of Expeditors.
The other night I was watching The Devil Wears Prada, one of my favorite movies. The best character is, of course, Miranda Priestly (played by Meryl Streep, in a role which is rumored to be based on real-life Vogue editor-in-chief, Dame Anna Wintour). Miranda’s character in the movie dictates “style” – but isn’t style, like beauty, in the eye of the beholder?
Unless you’re THE Miranda Priestly, you’ll probably agree that in fashion there is inherently a degree of subjectivity. What looks good, what looks bad, what fits right, what is gaudy, or what is beautiful. These are all things we take into consideration when choosing whether to buy a shirt or a pair of shoes, and unfortunately for most of us in the classification industry, those interpretations don’t stop at the checkout counter. The gray areas that pepper apparel classification leave many distinctions up to the interpretation of the classifier, making apparel classification very challenging. Here are a few notable examples.
Is it a coat or a jacket?
This is one of the most challenging apparel classification debates. In the Classification: Apparel Terminology under the HTSUS Informed Customs Publication (ICP), Customs provides vague guidance on the features that make a garment a “jacket,” and those features that make a garment a “coat.” Of course, there are still gray areas – for example, what if the garment has some of both features?
One distinguishing factor of coats and jackets is whether they “provide warmth and protection from the elements.” As someone who moved from Michigan to South Carolina, I can assure you that providing “warmth and protection” in Detroit is very different than providing “warmth and protection” in Charleston. In the case of high fashion, sometimes a garment is not designed to have such a functional purpose – it’s just meant to look good. Another distinguishing factor between coats and jackets is the length of the garment and whether it reaches the mid-thigh. As you can imagine, the length of a garment on someone who’s 5’2” would vary significantly from that on a person who is 6’1”.
Coats vs. jackets are just one of the many examples of highly nuanced apparel classification. I could also talk until I’m blue in the face about whether a bag is considered a “handbag” or a “tote.” I’ll save that for another blog. Alas, I think you can see how the unique composition and use of an article plays an integral role in apparel classification.
Is it a t-shirt or a pullover?
Another point of contention comes from headings 6109 and 6110, knit tops. Specifically, heading 6110 includes “T-shirts, singlets, tank tops and similar garments, knitted or crocheted” and heading 6110 includes “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” That term “and similar garments/articles” leaves a little bit of ambiguity for the classifier. What if a shirt is not quite a t-shirt because it doesn’t meet the t-shirt rules outlined in the Apparel Informed Compliance Publication (ICP) – is it then considered a “similar garment?” At what point does it get kicked out of the heading altogether?
If a graphic t-shirt has a large picture on it, and that picture is screen printed, it is classifiable under heading 6109, but a picture that is applied via heat transfer is not. That’s a rule straight out of the Apparel ICP, and it dictates classification under heading 6110 for t-shirts with a large heat transfer. But other rules come only from the precedent set in CBP rulings. For example, did you know that tank tops which have straps of width between 2 and 3 inches are considered “similar” garments under 6110? The ICP notes that tank tops under heading 6109 have “straps not over two inches in width.” Someone could reasonably infer that if a garment does not meet those criteria, it’s not included in that heading at all. Here, that is not the case. If you have a tank top that meets all of the other criteria outlined in the ICP, but the straps have a width of 2.5”, then it will remain in 6109 as a “similar garment,” just not a “tank top.”
Back on the topic of subjectivity, t-shirts under heading 6109 have to be “close-fitting” according to the ICP. What does “close-fitting” mean?” “Close-fitting” on who? Of course, some shirts are designed as loose-fitting garments, but what about those that are a bit in between? Experience, rationale, and customs rulings help us derive the answers to those questions. (Another fun fact, the EU and some other countries often classify t-shirts completely differently)
Financial Impact of Noncompliance
With duty rates between 8 and 38% in the US, I’ve had importers ask me “can’t we just pick the one with the lower duty?” and I cannot stress this enough – “NO!!!” Sure, apparel classification is chock-full of varying opinion, however, the Mod Act establishes that we take “reasonable care” when classifying. With that in mind, are you taking all possible measures to make the right decision? Do you have experienced staff or reach out to experts for support? Have you gotten a binding ruling from Customs? Are you using an experienced third-party to assist with your classification determinations? If so, you’re probably going to pass the “reasonable care” standard. You can make a fashion faux-pas, but try not to do so with your classifications as well. As always, Tradewin is here to support.