Application for Further Review of Protest No. 4701-07-100288; Tariff Classification of Women’s Garments

HQ H011010 June 18, 2008 CLA-2 OT:RR:CTF:TCM H011010 ASM CATEGORY: Classification TARIFF NO.: 6108.91.0030; 6208.91.3010 Area Director, JFK Bureau of Customs and Border Protection International Airport Area C/O Chief, Liquidation and Protest Branch Building 77 JFK International Airport Jamaica, New York 11430 RE: Application for Further Review of Protest No. 4701-07-100288; Tariff Classification of Women’s Garments Dear Area Director: This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of the importer, Carole Hochman Design Group, Inc., regarding the classification of certain women’s garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were received by Customs and Border Protection (CBP) and have been examined by this office. FACTS: The garment identified as Style 932073 is a ladies’ camisole style sleeveless top constructed of 100 percent cotton knit fabric. The garment is sleeveless, has a slight “V” shaped neckline in front and a slightly curved neckline in back. The shoulder straps are approximately ½ inch wide, are not adjustable, and form part of the binding for the underarm. The top descends to the waist or slightly below the waist and has a hemmed bottom. The garment bears a “Jockey”™ label sewn to the inside. The garment identified as Style 936063 is a ladies’ pullover top constructed of 100 percent cotton knit fabric. The garment has short sleeves that do not have a turned hem but have been finished with visible overlock stitching. The neckline is a deep “V” shape in front and straight across in back. Inset fabric strips form a capping at the “V” shaped neckline that are attached by decorative open single spaced threads (i.e., “hemstitching”) which creates about a ¼ inch separation that serves to enhance the front of the neckline. The garment extends to below the waist and has been finished with visible overlock stitching. The garment bears a “Jockey”™ label sewn to the inside. The garment identified as Style 937074 and 937074Y are woman’s boxer style shorts constructed from 100 percent cotton knit fabric. The elasticized waistband features a functional drawstring. The size medium sample has leg openings that are approximately 14 inches wide and have been finished with a turned hem. The shorts are approximately 13 inches long from the waist to bottom hem. The garment bears a “Jockey”™ label sewn to the inside. The garment identified as Style 938087 is a pair of woman’s pants constructed from 100 percent cotton woven fabric. The elasticized waistband has a functional drawstring. The pants are Capri length and there is decorative hemstitching approximately 1 ½ inches from the bottom hem of each pant leg. The pants feature a turned hem on each leg. The garment bears a “Jockey”™ label sewn to the inside. CBP liquidated the merchandise as outerwear garments in subheading 6109.10.0070, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton, Women’s or girls’: Other: Other”; and subheading 6104.62.2030, HTSUSA, which provides for “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: Trousers, bib and brace overalls, breeches and shorts: Of cotton: Other, Shorts: Women’s”. The importer timely filed a Protest and AFR asserting that the garments are classifiable as sleepwear in subheading 6108.91.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton, Other: Women’s”; and subheading 6208.21.0020, HTSUSA, which provides for “Women’s or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: Nightdresses and pajamas: Of cotton, Other: Women’s”. ISSUE:What is the proper classification for the merchandise? LAW AND ANALYSIS: 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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In St. Eve Int’l Inc. v. United States, 267 F. Supp. 2d 1371 (2003), the Court of International Trade dealt with the classification of camisoles as underwear garments in subheading 6109.10.0037, HTSUSA, or as tank tops in subheading 6109.10.0060, HTSUSA. The Court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter referred to as “Carborundum") to determine that the camisoles at issue therein were properly classified as undergarments of subheading 6109.10.0037, HTSUSA. Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. Among the detailed findings set forth by the court were the reputation of the importer in the trade for underwear, intimate apparel, and sleepwear; the camisoles are marketed as underwear; stores offer the camisoles for sale in their lingerie and intimate apparel department; the camisoles are not offered for sale as sportswear; the camisoles are sold year round; the camisoles are offered in the lingerie sections of retailer’s catalogues and; the camisoles are sold with matching underwear. See Carborundum, supra. The court determined that the camisoles are designed, knit, stitched together, imported, consigned and sold principally in the women's intimates or underwear departments of walk-in retail stores and classified the garments in subheading 6109.10.0037, HTSUSA, as undergarments.  Similarly, in the instant case, the Protestant has now provided new information for our consideration which supports classification of the merchandise as sleepwear pursuant to the criteria set forth in Carborundum, supra: (1) Carole Hochman Design Group, Inc. is exclusively engaged in the marketing and distribution of intimate apparel and sleepwear; (2) retail information shows the subject merchandise is marketed as a sleepwear garment and; (3) and it has been established that the goods are sold in the intimate apparel department in retail stores along side other sleepwear articles. Based upon the evidence presented and the factors set forth in St. Eve, supra, and Carborundum, supra, the subject garments are classified as sleepwear in subheading 6108.91.0030, HTSUSA, and subheading 6208.91.3010, HTSUSA. This decision is supported by the following CBP rulings which also applied the aforementioned criteria in determining whether or not articles were outerwear garments: Headquarters Ruling Letter (HQ) 967044, dated May 25, 2004; HQ 966807, dated March 11, 2004; HQ 966832, dated December 12, 2003; HQ 953591, dated June 3, 1993; and HQ 951628, dated August 12, 1992. In view of the foregoing, we conclude that the merchandise was incorrectly classified as outerwear in subheadings 6109.10.0070 and 6104.62.2030, HTSUSA. At this time, based on the new information submitted to this office, we find that the subject garments are properly classified as sleepwear in subheadings 6108.91.0030 and 6208.91.3010, HTSUSA. HOLDING: Protest No. 4701-07-100288 should be ALLOWED. At the time of entry, the garments identified as Style 932073, 936063, 937074, and 937074Y were classifiable in subheading 6108.91.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton, Other: Women’s”. The general column one rate of duty at the time of entry was 8.5 percent ad valorem, with the applicable textile quota category number being 350. At the time of entry, the garment identified as Style 938087 was classifiable in subheading 6208.91.3010, HTSUSA, which provides for “Women’s or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: Other: Of cotton: Other, Women’s”. The general column one rate of duty at the time of entry was 11.2 percent ad valorem, with the applicable textile quota category number being 352. In accordance with the 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 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 International 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