CLA-2: RR:CTF:TCM H027687 ASM
Port Director
U.S. Customs and Border Protection
Protest & Control
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
RE: Application for Further Review of Protest 4601-08-100177
Dear Port Director:
This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 4601-08-100177, filed by Sherry Singer, Esq., on behalf of her client, Tanu USA Inc. Samples have been received by Customs and Border Protection (CBP).
Additional consideration has been given to the substance of a meeting held with counsel for protestant on June 9, 2009 and a supplemental written submission dated August 6, 2009.
FACTS:
The merchandise at issue consists of 100% cotton knit garments. The garments feature rib knit crew necklines, short hemmed sleeves, and a straight hemmed bottom extending to approximately mid-thigh. The garments are imported in sizes XL-5XL. Based on the dimensions, we view these garments to be unisex. Although no marketing information has been provided, Counsel for the importer indicated that the merchandise is sold in small stores such as convenience stores and gas stations. Examination of the company website failed to reveal any mention of women’s nightwear. However, the men’s wear section of the “Haute Clothing” website indicates that, in fact, the company offers “Extra Long – Urban Wear”, which resembles an oversized T-shirt for outdoor use.
The protest is against CBP’s classification and liquidation of seven entries of garments as “pullovers” under heading 6110 of the Harmonized Tariff Schedule of the United States (HTSUS). Between January 11, 2007 and May 15, 2007, protestant entered the merchandise subject to this protest in heading 6108, HTSUS, as ladies “nightdresses”. On October 12, 2007, CBP issued a Notice of Action to rate advance the entry. On September 14, 2007 and November 16, 2007, CBP liquidated the merchandise in all seven entries as “pullovers” in heading 6110, HTSUS.
On January 23, 2008, the importer filed a protest and application for further review against the classification and liquidation of the merchandise in heading 6110, HTSUS. The importer claims that the garment is properly classified as a cotton sleepwear “nightdress” of 6108.31.00, HTSUS. In the alternative, the importer claims classification as an “other” garment under 6114.20.00, HTSUS, or as a “dress” under 6104.42.00, HTSUS. Protestant’s AFR request was approved.
The protest was properly filed 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 or after December 18, 2004. (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. 4701-06-100384 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b). At the time this Protest was filed, Protestant correctly asserted that this matter had not yet been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
ISSUE:
What is the classification of the subject 100 percent cotton knit garments under the HTSUS?
LAW AND ANALYSIS:
We have enclosed Headquarters Ruling Letter (HQ) H044561, dated October 28, 2009, which addresses CBP’s position on the classification of cotton knit garments substantially similar to the ones now under consideration. Accordingly, we incorporate the LAW AND ANALYSIS Section of that ruling in this decision, as it is dispositive of the issues you have raised.
Protestant has also asserted that CBP failed to adhere to change of practice requirements as set forth in 19 CFR 177.10, which provides in relevant part:
(a) Generally. Within 90 days after issuing any interpretive decision under the Tariff Act of 1930, as amended, relating to any Customs transaction (prospective, current, or completed), the Customs Service shall publish the decision in the Customs Bulletin or otherwise make it available for public inspection. For purposes
of this paragraph an interpretive decision includes any ruling letter, internal advice memorandum, or protest review decision. Disclosure is governed by 31 CFR part 1, 19 CFR part 103, and 19 CFR 177.8(a)(3).
* * *
(c) Changes of Practice. Before the publication of a ruling which
has the effect of changing an established and uniform practice and which results in the assessment of a higher rate of duty within the meaning of 19 U.S.C. 1315(d), notice that the practice (or prior ruling on which that practice was based) is under review will be published in the Federal Register and interested parties will be given an opportunity to make written submissions with respect to the correctness of the contemplated change.
Protestant cites five CBP Ruling Letters asserting that substantially similar merchandise was classified as “nightdresses” in heading 6108, HTSUS. Regarding the two New York Rulings cited by protestant, we note that all CBP New York Ruling files which predate September 11, 2001, were destroyed. Thus, we are unable to compare a sample or review the evidence submitted for New York Ruling Letter (NY) 811337, dated August 1, 1995, and NY A87299, dated October 2, 1996. Regarding the Headquarters Rulings cited by protestant, we note that in HQ 957634, dated September 13, 1995, CBP classified certain garments as women’s sleepwear based on a “totality of the evidence” which included samples, advertising, and internal documentation, all of which substantiated the claim that from the time of manufacture until the time of sale, the garments were designed and intended for use as sleepwear. Similarly, in HQ 953591, dated June 3, 1993, and HQ 951628, dated August 12, 1992, CBP classified garments in heading 6108, HTSUS, as women’s sleepwear by finding that there was overwhelming evidence that the merchandise was marketed and advertised in the channels of trade for sleepwear. In arriving at this conclusion, CBP relied on United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F2d 373 (CAFC) Cert. den, Carborundum Co. V. United States, 429 U.S. 979 (1976), in which the appeals court established criteria to be applied in determining the chief use of an imported article in the absence of special language or context. The Court considered the following factors to be determinative: 1. general physical characteristics of the merchandise; 2. expectations of the ultimate purchasers; 3. channels, class or kind of trade in which the merchandise moves; 4. environment of the sale and the manner in which the merchandise is advertised and displayed; 5. use, if any, in the same manner as merchandise which defines the class; 6. the economic practicality of so using the import; 7. recognition in the trade of this issue.
In the matter now before us, protestant has failed to provide any evidence of internal documentation, marketing, or advertisement that would establish, pursuant to a Carborundum analysis, that the subject garments are in the channels of trade for woman’s nightdresses. Rather, the general physical characteristics of the garments are not that of women’s sleepwear because these t-shirts have very little freedom of movement in the neckline required for comfort while sleeping. In fact, the company’s website bears no mention of woman’s sleepwear and there is nothing by which we can assess the expectations of the ultimate purchasers, class or kind of trade in which the merchandise moves, environment of sale and the manner advertised and displayed for use as sleepwear. As such, the aforementioned Headquarters rulings cited by protestant are not applicable to the subject merchandise.
In view of the foregoing, the subject merchandise is classified in subheading 6110.20.20, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other”.
HOLDING:
The subject merchandise, identified as 100 percent cotton knit garments, is properly classified in subheading 6110.20.20, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other”. The general, column one rate of duty is 16.5 percent ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, 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
Enclosure