CLA-2 OT:RR:CTF:TCM H060003 CKG
Category: Classification
Tariff No.: 6108.21.0010, 6109.10.0037
Port Director
Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Re: Application for Further Review of Protest No. 2704-08-103801; classification of
women’s undergarments
Dear Port Director,
This is in reference to the Application for Further Review (AFR) of Protest Number 2704-08-103801, filed on behalf of the importer, Richard Leeds International, Inc., contesting Customs and Border Protection’s (CBP’s) classification and liquidation on May 23, 2008, of one entry of cotton camisoles and panties as underwear of subheadings 6108.21.0010 and 6109.10.0037, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The instant protest covers eight styles of camisoles and matching panties of the “Mutts Daywear” line. The four camisole styles are W474226, W474246, W474266, and W474286. A sample was provided for style W474266, a camisole with thin, elasticized shoulder straps, in size medium. It covers the torso from the top of the bust to below the waist. It also features elasticized capping at the top edges of the underarm and rear, side seams, a hemmed bottom, and a U-shaped neckline on the front with lace trim. The upper edge of the back extends straight across. The front of the garment features a design of two sleeping puppies, and the words “Share your dreams” printed below. The remaining style numbers feature different colors and printed images.
The four panty styles are W474239, W474259, W474279, and W474299. A sample was provided for style W474279. The garment features a fabric-covered, elasticized top with lace-like trim, a small satin bow at the front center top, side seams, and hemmed high cut elasticized leg openings.
ISSUE:
Whether the subject garments are classified as underwear of subheadings 6108.21.0010 and 6109.10.0037, HTSUSA, or sleepwear of subheading 6108.31.00, HTSUS.
LAW AND ANALYSIS:
The matter is protested under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry 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. 2704-08-103801 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision.
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 GRI may then be applied.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. 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 T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration in this case are as follows:
6108: Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
Briefs and panties:
6108.21.00: Of cotton……
6108.21.0010: Women's (352)…..
Nightdresses and pajamas:
6108.31.00: Of cotton……
6108.31.0010: Women's (351)…….
* * * * *
6109: T-shirts, singlets, tank tops and similar garments, knitted or crocheted:
6109.10.00: Of cotton . . . .
Women's or girls':
6109.10.0037: Underwear (352) . . .
* * * * *
The protestant contends that the subject articles are designed, manufactured and used as sleepwear. The determination of whether garments are classified as sleepwear or underwear is controlled by the principal use of the garments. A tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise. Additional U.S. Rule of Interpretation 1(a). In past rulings, CBP has stated that the most crucial factor in the classification of a garment is the garment itself. See Headquarters Ruling Letter (HQ) 966234. When this has not proven substantially helpful, we consider other extrinsic evidence such as environment of sale, advertising and marketing, and recognition in the trade of virtually identical merchandise. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. Also relevant to our analysis is the documentation incidental to the purchase and sale of the merchandise, i.e., purchase orders, invoices, and other internal documentation. See HQ 964513, dated February 11, 2002. The Court of International Trade in St. Eve Int’l Inc. v. United States, 267 F. Supp. 2d 1371 (2003) also considered the reputation of the importer in the trade for underwear, intimate apparel, and sleepwear. It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each factor viewed alone may be flawed.
In a recent informed compliance publication (ICP), Customs 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 ICP provides the following descriptions of the provisions at issue:
Nightdresses, pajamas and similar articles (women’s or girls’) (6108, 6208)
Pajamas consist of two components covering the upper and lower torso. The upper part, may be a pullover or shirt style, with long, short or no sleeves and a lower part, short, intermediate, or long trouser-like garments or of any style panties… Women’s sleepwear (pajama) tops and (pajama) bottoms, if imported in the same shipment in equal numbers of tops and bottoms that match as to design, style, coloring and size, would be classified as pajamas.
Underwear (6108, 6109) –
is a term referring to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors. Whether or not a garment is worn next to the body of the wearer is not a determinant; babies’ diapers, for example, are so worn, as are bathing suits.
Panties (6108, 6208) –
are women’s and girl’s short underpants having no leg portion, and fitted snugly at the waist or hips.11 The term also includes bikini, hipster and thong style underwear.
See CBP Informed Compliance Publication on Classification: Apparel Terminology under the HTSUS.
Protestant cites HQ 962827, dated August 29, 2000, and NY L82688, dated March 23, 2005, as the basis for the instant protest. Both rulings classified similar garments as sleepwear. In NY L82688, the classification of the subject garments was based in part on the merchandising information, which the importer has not provided in this case. In HQ 962827, CBP found that similar garments were classified as sleepwear in part because they were loose fitting and also because the garments were purchased by sleepwear buyers in department stores.
The Leeds camisole tops may be loose fitting for the stated size and target market. However, as no age ranges have been identified for the intended users, this is far from clear. The fit of the Leeds tops will vary greatly according to the age range of the wearer. Even within a specified age range, children grow at different rates and may hit a growth spurt at any time. There is thus greater uncertainty with regard to childrens’ sizes. Hence, the physical characteristics of the subject camisoles alone are insufficient to determine their classification.
The Leeds panties, on the other hand, are private and intimate apparel which do not appear loose fitting. CBP further noted in HQ 966288, dated June 12, 2003, that “ in distinguishing underwear, it is generally agreed that sleeveless tops with lace inserts or lace edgings are predominately worn as underwear.” Panties are more typically regarded as underwear, as noted in the ICP definition of underwear. Matching sets of upper and lower body garments are also typical of underwear. CBP has frequently classified camisoles imported with matching panties as underwear under subheadings 6109.90.1065 and 6108.22.9020, HTSUSA, respectively. See e.g., NY I89340, dated January 15, 2001; NY H89749, dated April 19, 2002)(style 1029/1030); NY G89861, dated April 23, 2001; NY H80557, dated May 24, 2001; NY F81966, dated January 24, 2000; NY C82971, dated January 6, 1998; and NY D83058, dated October 9, 1998.
The physical characteristics of the panties thus suggest classification as underwear in subheading 6108.21.0010, HTSUSA, while the characteristics of the camisole are ambiguous. The importer has not submitted any extrinsic evidence with regard to the remaining Carborundum factors. Richard Leeds is known as a seller of intimate apparel, but how these individual styles are sold and marketed is unknown. The only evidence submitted with regard to environment of sale, marketing, etc. are the catalog pages for the subject styles. The catalog page for styles W474266- W474269, W474226- W474239, W474246- W474259 and W474286- W474299 reveals the name of the product line to be “Mutts Daywear.” “Daywear” is evidently more suggestive of underwear than sleepwear.
We also have before us the entry documentation with regard to the subject merchandise. All the subject styles are repeatedly described as underwear on the importer’s entry documentation, including the commercial invoice, certificate of origin, packing list and textile export license. The export license further indicates that the subject garments fall under textile category 352, for underwear. Similarly, in HQ 966288, the importer’s visas, commercial invoices, country of origin declarations, packing lists, airway bills and exporter’s declarations all described the merchandise as an undershirt and brief set. This contributed to CBP’s finding in that case that the subject garments were underwear.
It is the importer’s responsibility to substantiate their classification claim. In this case the importer has not provided any evidence to support their claim of sleepwear.
In light of the information before us, we find that the subject garments are classifiable as underwear, in subheading 6109.10.0037 (styles W474226, W474246, W474266, and W474286), HTSUSA, and subheading 6108.21.0010 (styles W474239, W474259, W474279), HTSUSA.
HOLDING:
By application of GRI 1, panty styles W474239, W474259, W474279, and
W474299 are classified in subheading 6108.21.0010, HTSUSA, which provides for “Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Briefs and panties: Of cotton…Women's.” The 2008, column one, general rate of duty is 7.6% ad valorem.
The camisole styles W474226, W474246, W474266, and W474286 are classified in subheading 6109.10.0037, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton . . .Women's or girls':
Underwear.” The 2008, column one, general rate of duty is 16.5% ad valorem.
You are instructed to deny the protest in full. 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 Customs 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 the Office of 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