CLA-2 OT:RR:CTF:TCM H060004 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. 2704-09-100432; classification of
women’s undergarments
Dear Port Director,
This is in reference to the Application for Further Review (AFR) of Protest Number 2704-09-100432, filed on behalf of the importer, Richard Leeds International, Inc., contesting Customs and Border Protection’s (CBP’s) classification and liquidation on August 22, 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 two styles of matching camisoles and panties, styles K475996 and K475999. A sample was provided for style K475999, 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 a ruffle trim. The upper edge of the back extends straight across from side seam to side seam. The front of the garment features an image of “Betty Boop” and the phrase “Don’t Hate Me Because I’m Beautiful” printed above the image.
The sample of panty style K475996 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. The front of the garment features an image of “Betty Boop”, and the words “Don’t Hate Me Because I’m Beautiful” are printed on the back.
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. 2704-09-100432 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 importer 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, 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.
In order to be classified as pajamas, CBP has stated that there must be both a top and bottom garment. Pajama bottoms imported without their matching pajama tops are not classifiable as pajamas. In the case of shipments of one component or shipments of unequal numbers of tops and bottom where there are “extra” components, the lone component is not classifiable as pajamas. However, pajama tops and bottoms imported separately are still classifiable in the sleepwear provisions. Thus, while the commercial invoice indicates that styles K475999 and K475996 are in fact imported in unequal quantities—13,642 and 12,202 pieces, respectively—if they meet the criteria for sleepwear they may still be classified as such despite being imported in unequal quantities.
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 sample provided for style K475999 appears snug fitting for the stated size and for a wide range of ages. 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.” The Leeds panties are also private and intimate apparel which do not appear loose fitting. Panties are more typically regarded as underwear, as noted in the ICP definition of the term 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); 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 instant merchandise thus suggest classification of the garments at issue as underwear. 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, which shed no light on the principal character or use of the instant garments.
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, while the physical characteristics of the garments are consistent with underwear. In light of the information before us, we find that the camisoles are classifiable as underwear in subheading 6109.10.0037, HTSUSA (style K475999). The panty briefs are classified as underwear, in subheading 6108.21.0010, HTSUSA (style K475996).
HOLDING:
By application of GRI 1, style K475999 is 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.
Style K475996 is 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
.