Revocation of NY N316788, NY N317786, and NY N322044; Tariff classification of women’s underwear

H328584 June 23, 2025 OT:RR:CTF:FTM H328584 TJS CATEGORY: Classification TARIFF NO.: 9619.00.61; 9619.00.64 Ms. Linda Krueger Jockey International, Inc. 2300 60th Street Kenosha, WI 53140 RE: Revocation of NY N316788, NY N317786, and NY N322044; Tariff classification of women’s underwear Dear Ms. Krueger: This letter is in reference to New York Ruling Letter (“NY”) N316788, issued to you on January 20, 2021, NY N317786, issued to you on March 3, 2021, and NY N322044, issued to you on October 15, 2021, concerning the tariff classification of certain women’s underwear under the Harmonized Tariff Schedule of the United States (“HTSUS”). In these rulings, U.S. Customs and Border Protection (“CBP”) classified the women’s underwear in heading 6108, HTSUS, as women’s briefs or panties. We have since reviewed NY N316788, NY N317786, and NY N322044 and determined the classification of the women’s undergarments to be incorrect. For the reasons set forth below, we hereby revoke NY N316788, NY N317786, and NY N322044. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on January 15, 2025, in Volume 59, Number 3 of the Customs Bulletin. No comments were received in response to this notice. FACTS: The merchandise in NY N316788 was described as follows: Style 2583, “Worry Free Brief,” is a woman’s hipster style panty constructed of 95% cotton, 5% spandex knit fabric. The undergarment also features a gusset with three additional layers. The liner is 94% cotton, 6% spandex over a layer of 95% cotton, 5% spandex fabric and a layer of 100% nylon. The gusset area is secured with waterproof seam tape. You state that the garment will be marketed for incontinence and minor menstrual issues. In addition, you state that advertising will claim that the garment is washable, reusable and will help reduce landfill waste by replacing pantyliners. The merchandise in NY N317786 was described as follows: Style 2528 is a woman’s underwear brief constructed of 95% cotton, 5% spandex knit fabric. The undergarment features a gusset with three additional layers that you state creates a barrier for leakage. The item will be marketed for incontinence and menstrual issues. The liner is 94% cotton, 6% spandex knit fabric with wicking over a layer of 100% polyester fabric featuring wicking and an anti- microbial finish and a final layer that you state creates a waterproof barrier, which is made up of thermoplastic polyurethane bonded to 100% polyester knit fabric. The gusset seams are secured with waterproof tape. In addition, you state that the undergarment is washable and reusable. Style 2526 is a woman’s underwear brief constructed of 95% cotton, 5% spandex knit fabric. The undergarment features a gusset with three additional layers that you state creates a barrier for leakage. The item will be marketed for incontinence and menstrual issues. The liner is 94% cotton, 6% spandex knit fabric with wicking over a layer of 100% polyester fabric featuring wicking and sanitized odor control and a final layer that you state creates a waterproof barrier, which is made up of thermoplastic polyurethane bonded to 100% polyester knit fabric. The gusset seams are secured with waterproof tape. In addition, you state that the undergarment is washable and reusable. The merchandise in NY N322044 was described as: Style 2588, “Worry Free Boxer Brief,” is a woman’s boy leg underpant constructed of 95% cotton, 5% spandex knit fabric. The undergarment features an elastic waistband, hemmed leg openings and a floating gusset with three additional layers. The liner is 94% cotton, 6% spandex over a layer of 100% polyester fabric and a layer of 100% nylon. The gusset area is secured with waterproof seam tape. You state that the garment will be marketed for incontinence and minor menstrual issues. In addition, you state that advertising will claim that the garment is washable, reusable and will help reduce landfill waste by replacing pantyliners. According to the product specification sheets included in the original ruling requests, the outer layer of the gusset in each style has a film of thermoplastic polyurethane (TPU). Style 2583, which is designed for light protection can hold 25mL or 5.07 teaspoons of liquid. Styles 2528 and 2588 are intended for moderate protection and Style 2526 is intended for full protection. CBP classified Styles 2583, 2528, and 2526 in subheading 6108.21.00, HTSUS, which provides for “Women’s … briefs, panties … , knitted or crocheted: Briefs and panties: Of cotton.” CBP classified Style 2588 in subheading 6108.91.00, which provides for, “Women’s … briefs, panties … , knitted or crocheted: Other: Of cotton.” 2 ISSUE: What is the tariff classification of the women’s underwear at issue under the HTSUS? LAW AND ANALYSIS: Classification under the HTSUS is determined 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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level. The 2025 HTSUS provisions under consideration 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… Other: 6108.91.00: Of cotton… * * * * * 9619.00: Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other, of textile materials: Knitted or crocheted: 9619.00.61: Of cotton… 9619.00.64: Of man-made fibers… * * * * * GRI 3(a) and (b) provide as follows: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in 3 mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. * * * * * Note 1(u) to Section XI, HTSUS, provides: 1. This section does not cover: … (u) Articles of chapter 96 (for example, brushes, travel sets for sewing, slide fasteners, typewriter ribbons, sanitary pads (towels) and tampons, diapers (napkins) and diaper liners) * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While not legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system.” See id. The EN to heading 96.19 states, in pertinent part: This heading covers sanitary towels (pads) and tampons, napkins (diapers) and napkin liners and similar articles, including absorbent hygienic nursing pads, napkins (diapers) for adults with incontinence and pantyliners, of any material. In general, the articles of this heading are disposable. Many of these articles are composed of (a) an inner layer (e.g., of nonwovens) designed to wick fluid from the wearer’s skin and thereby prevent chafing; (b) an absorbent core for collecting and storing fluid until the product can be disposed of; and (c) an outer layer (e.g., of plastics) to prevent leakage of fluid from the absorbent core. The articles of this heading are usually shaped so that they may fit snugly to the human body. This heading also includes similar traditional articles made up solely of textile materials, which are usually re-usable following laundering. This heading does not cover products such as disposable surgical drapes and absorbent pads for hospital beds, operating tables and wheelchairs or non- 4 absorbent nursing pads or other non-absorbent articles (in general, classified according to their constituent material). * * * * * Heading 9619, HTSUS, was introduced into the HTSUS in 2012, providing for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material.”1 Since Note 1(u) to Section XI, HTSUS, provides that Section XI, which includes Chapters 61 and 62, HTSUS, does not cover articles of Chapter 96, HTSUS, we must first consider whether the underwear at issue is classifiable in Chapter 96, HTSUS. The women’s underwear at issue is not any of the articles named in heading 9619, HTSUS, (i.e., sanitary pads (towels), tampons, diapers (napkins), or diaper liners). The question therefore is whether the underpants are similar to these named articles. The term “and similar articles” appearing after a list of articles invokes the rule of ejusdem generis, which means “of the same kind.” In tariff classification cases, “ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Sports Graphics, Inc., v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994) (citing Nissho-Iwai Am. Corp. v. United States, 10 C.I.T. 154, 157, 641 F. Supp. 808, 810 (1986)). The ENs are informative in understanding what constitutes “similar articles” under heading 9619, HTSUS. The ENs for heading 9619, HTSUS, explains that many of the articles in this heading are composed of three layers: “(a) an inner layer (e.g., of nonwovens) designed to wick fluid from the wearer’s skin and thereby prevent chafing; (b) an absorbent core for collecting and storing fluid until the product can be disposed of; and (c) an outer layer (e.g., of plastics) to prevent leakage of fluid from the absorbent core.” Furthermore, articles of heading 9619, HTSUS, are usually shaped so that they may fit snugly to the human body and include similar traditional articles made up solely of textile materials, which are usually re-usable following laundering. In essence, the ENs indicate that heading 9619, HTSUS, provides for wearable absorbent articles. We find that the underpants at issue fit the description provided by the EN as articles that are classifiable in heading 9619, HTSUS. First, all four styles of underwear contain a three-layer gusset designed to absorb liquid. The inner layer of each gusset wicks away moisture, drawing the liquid into an absorbent core. The outer layer of the gusset is composed of a man-made fabric (either nylon or polyester) bonded with TPU. The gusset area in each style is secured with waterproof seam tape. Furthermore, the presence of spandex in the body fabric of each style allows the underwear to form and fit snugly to the wearer’s body. Additionally, the women’s sanitary underwear is specifically designed to be worn during the menstrual cycle. The product line is named “Worry Free,” suggesting that wearers need not worry about leakage. The underwear is reusable after laundering and is marketed as a replacement for disposable menstrual products. The underwear offers more absorbency compared to traditional disposable menstrual products. For example, Style 2583 offers light protection and can hold 25mL 1 In 2022, the heading description was changed to “Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material.” 5 of liquid whereas a regular-absorbency tampon or sanitary pad generally holds 5mL.2 Given their construction and purpose, we find that the women’s underwear are articles similar to sanitary pads (towels) and tampons. We conclude, therefore, that all four styles are classifiable in heading 9619, HTSUS, as “similar articles.” The eight-digit subheadings within heading 9619, HTSUS, are divided according to material composition. Since each underwear style is comprised of different textile materials, the appropriate subheading for the subject merchandise cannot be determined pursuant to GRI 1. Per GRI 2(b), “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” Applying GRI 3(a) in the context of the subheading, we find that more than two subheadings refer to only part of the materials that comprise the subject merchandise. As such, we refer to GRI 3(b), which states that “[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” In Headquarters Ruling Letter (“HQ”) H271286, dated April 4, 2017, CBP stated that the absorbent component is essential for articles of heading 9619, HTSUS. Further, in HQ H301362, dated April 24, 2019, CBP confirmed that the essential character of diapers under GRI 3(b) was the material that absorbs the fluids away from the body, i.e., the absorbent core. More recently, in HQ H304671, dated March 28, 2022, CBP held that the essential character of babies’ swimwear of subheading 9619.00, HTSUS, was based on the absorbent component. Likewise, here, the absorbent core imparts the essential character of the women’s underwear, and the underwear will be classified at the eight-digit subheading level according to the constituent material of the absorbent component. According to the product specification sheets for each the style, the middle layer of the gusset is designed to absorb and store liquid. In NY N316788, the absorbent core of Style 2583 is made of 95% cotton and 5% spandex fabric. Since the core is primarily made of cotton, Style 2583 will be classified in subheading 9619.00.61, HTSUS, which provides for “Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other, of textile materials: Knitted or crocheted: Of cotton.” Styles 2526, 2528, and 2588 each have an absorbent core of 100% polyester. Therefore, these styles will be classified in subheading 9619.00.64, HTSUS, which provides for “Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other, of textile materials: Knitted or crocheted: Of man-made fibers.” HOLDING: By application of GRIs 1, 3(b), and 6, Style 2583 is classified under heading 9619, HTSUS, and specifically in subheading 9619.00.61, HTSUS, which provides for “Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other, of textile 2 Dr. Anna Targonskaya, How much blood do you lose during your period? FLO (Feb. 16, 2022), available at: https://flo.health/menstrual-cycle/health/period/how-much-blood-you-lose. 6 materials: Knitted or crocheted: Of cotton.” The 2025 column one, general rate of duty is 10.8% ad valorem. By application of GRIs 1, 3(b), and 6, Styles 2526, 2528, and 2588 are classified under heading 9619, HTSUS, and specifically in subheading 9619.00.64, HTSUS, which provides for “Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other, of textile materials: Knitted or crocheted: Of man-made fibers.” The 2025 column one, general rate of duty is 14.9% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current. EFFECT ON OTHER RULINGS: NY N316788, dated January 20, 2021, NY N317786, dated March 3, 2021, and NY N322044, dated October 15, 2021, are REVOKED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Yuliya A. Gulis, Director Commercial and Trade Facilitation Division 7