CLA-2 OT:RR:CTF:FTM H282931 GaK
Port Director
Port of Los Angeles
U.S. Customs & Border Protection
11099 South La Cienega Blvd.
Los Angeles, CA 90045
Attn: Pauline Garcia, Import Specialist
Re: Protest and Application for Further Review No. 2704-16-100807; Classification of women’s knit shorts
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-16-100807, timely filed on June 28, 2016, on behalf of JV Apparel Corp. (“JV” or “Protestant”). The AFR concerns the tariff classification of women’s knit shorts under the Harmonized Tariff Schedule of the United States (“HTSUS”). The sample is being returned with this letter.
FACTS:
This AFR concerns the tariff classification of women’s knit shorts entered on January 6, 2016, and liquidated on June 3, 2016. The women’s garments were entered under subheading 6108.91.00, HTSUS, which provides for “[w]omen’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton” and was liquidated under subheading 6104.62.20, HTSUS, which provides for “[w]omen’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 cotton: Other.”
The garment at issue is a pair of women’s knit shorts composed of 68 percent cotton and 32 percent polyester knit fabric. The pull on shorts extend from the waist to the upper thigh area and feature an approximately 2 inch wide elasticized waistband, an outer drawstring tightening, two front and back non-functional overlock stitched seams and hemmed leg openings.
The Protestant asserts that the women’s knit shorts should be classified under subheading 6108.91.00, HTSUS. A sample of the women’s knit shorts was submitted to CBP.
ISSUE:
Whether the women’s knit shorts are classified under heading 6104, HTSUS, as “[w]omen’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” or heading 6108, HTSUS, as “[w]omen’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.”
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on January 6, 2016. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of Protest No. 2704-16-100807 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts.
Classification under the HTSUS is made 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 2016 HTSUS headings under consideration here 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
* * *
6108 Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted
In the classification of garments submitted to be sleepwear, CBP considers factors discussed in several decisions by the Court of International Trade. In Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F.2d 144 (Fed. Cir. 1986), the Court of International Trade cited several lexicographic sources, among them Webster’s Third New International Dictionary which defined “nightclothes” as “garments to be worn to bed.” Based on an examination of the garment, witness testimony, and other evidence concerning how it was marketed and advertised, the court determined that the garment at issue was designed, manufactured, and used as nightwear and, therefore, was classifiable as nightwear. Id. at 500-51. Likewise, in St. Eve International, Inc. v. United States, 11 C.I.T. 224 (1987), the court ruled that the garments at issue in that case were manufactured, marketed and advertised as nightwear and were chiefly used as such. The court in St. Eve based its conclusion on an analysis of how the garment was advertised and marketed, and an examination of the garment itself. Similarly, in Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-06 (1995), based upon an examination of the merchandise at issue, witness testimony, and documentary evidence such as marketing and advertising materials, the court determined that the subject merchandise was classifiable as underwear and not outerwear.
Thus, the determination of the classification of an imported garment requires an analysis of the physical characteristics of the article and, if the article is ambiguous in design and not clearly recognizable, of the extrinsic evidence, such as marketing materials and invoices associated with the article. See Headquarters Ruling Letter (“HQ”) 967185, dated October 8, 2004 (stating that CBP’s policy is to carefully examine the physical characteristics of the garments in question and in some cases to consider other extrinsic evidence); HQ 962021, dated September 19, 2001 (stating that for a garment not clearly recognizable as underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc). See also Inner Secrets, 19 C.I.T. at 505-06. Factors to be considered include: the general physical characteristics of the merchandise, the expectations of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of the sale and the manner in which the merchandise is advertised and displayed, the use in the same manner as merchandise which defines the class, the recognition in the trade of this use, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. See St. Eve International, Inc. v. United States, 27 C.I.T. 758, 761-62, 767-68, 772 (2003); Inner Secrets, 19 C.I.T. at 503. CBP considers these factors in totality and no single factor is determinative of classification as each viewed alone may be flawed. See HQ 967185, dated October 8, 2004; and HQ 964513, dated February 11, 2002.
In classification of garments, merchandise itself may be strong evidence of its use. Mask Industries, 9 C.I.T. at 552, (citing United States v. Bruce Duncan Co., 50 C.C.P.A. 43, 46 (1963)). See also HQ 966234, dated September 2, 2003). Night clothes and sleepwear are characterized by a sense of privateness or private activity such as sleeping. See International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff’d 153 F.3d 1378 (Fed. Cir. 1998). Meaning they are worn in private situations such as in one’s home while alone or in the company of only intimate friends and close family. On the other hand, loungewear is “worn at informal social activities in and around the home, and for other individual, non-private activities in and around the house.” Id. Examples of activities where loungewear is appropriate are “watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance, washing the car, walking the dog, and the like.” Id. In essence, loungewear would be an article of clothing that lacks the sense of privateness such that a reasonable person would deem it appropriate to wear it in front of people other than close family or intimate friends. Thus, in consideration of the physical characteristics, the threshold question in the instant case is whether the women’s knit shorts are appropriate to wear in informal social activities, such as in the examples enumerated by the court in International Home, or whether they possess the essential character of privateness or private activity.
The sample shorts are heathered blue with an approximately 2 inch wide elasticized waistband, an outer drawstring tightening, two front and back non-functional overlock stitched seams and hemmed leg openings. Based on the physical examination of the garments, we find that they can be used as sleepwear or for lounging. These shorts are not characterized by a sense of privacy as is typical of sleepwear. The constituent material is not sheer or revealing. Nothing precludes these garments from being worn in a social environment in and around the home or even outdoors.
In such circumstances where the article is ambiguous in design, the principal use is determined by the manner in which the garments are designed, marketed, and sold. The Protestant provided copies of its U.S. buyer’s websites to demonstrate that the shorts are sold as sleepwear with other sleepwear items. The websites sell the shorts in the Sleepwear section and the shorts are described as “cute shorts to lounge around in, or a good night’s sleep!” and “shorts you won’t ever want to change out of! While ideal for sleeping and lounging, these shorts are great for running quick errands.” The Protestant also provided the spec sheet for the shorts, bill of lading, commercial invoice, and purchase orders which refer to the shorts as “sleep shorts.”
Noting that internal company documents, such as invoices, can be viewed as self-serving, Regali v. United States, 16 C.I.T. 407 (1992), and the manner in which the shorts are advertised and marketed to the ultimate purchaser, CBP is of the opinion that the extrinsic evidence does not substantiate the Protestant’s claim for classifying the shorts as sleepwear. While the shorts are sold in the intimate and sleepwear sections, CBP has recognized that intimate apparel departments can sell merchandise other than intimate apparel. See supra HQ 967185, and HQ 955341, dated May 12, 1994.
While the garments may be used for sleepwear, it is our opinion that their principal use is not as sleepwear. The garments are not characterized by a sense of privacy as typical of sleepwear. The advertising material shows that the shorts were advertised as “shorts to lounge around in, or a good night’s sleep” and “[w]hile ideal for sleeping and lounging…great for running quick errands.” Therefore, the physical characteristics of the shorts coupled with the extrinsic evidence support the finding that the shorts should be classified as loungewear and not sleepwear.
HOLDING:
Pursuant to GRI 1, the women’s shorts are classified under heading 6104, HTSUS. They are specifically provided for under subheading 6104.62.20, HTSUS, which provides for “[w]omen’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 cotton: Other.” The 2016 column one rate of duty is 14.9 percent, ad valorem.
The protest should be DENIED.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division