Application for Further Review of Protest No. 1401-23-107538; Tariff Classification of Women’s Garments

H334468 June 9, 2025 OT:RR:CTF:FTMH334468 MJD CATEGORY: Classification TARIFF NO.: 6104.62.20 Center DirectorU.S. Customs and Border Protection Apparel, Footwear & Textiles CEE 555 Battery Street, Room 401 San Francisco, CA 94111 Attn:Grace Carmichael, Import SpecialistRe:Application for Further Review of Protest No. 1401-23-107538; TariffClassification of Women’s GarmentsDear Center Director:The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1401-23-107538 (“Protest”), timely filed on April 20, 2023, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Innerwear Brands Intel., Inc. (hereinafter, “Protestant”),concerning thetariff classification of women’s garments under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS:The merchandise at issue consists of women’s garment styles SBW0712X12 and SBW0771X12 under cover of Entry No. XXXXXXX317. Both styles are pull-on lower body garments constructed of 95% cotton, and 5% spandex knit fabric. Thegarmentsfeature a covered elasticized waistband measuringapproximately 1 inch wide, and short hemmed leg openings. They also feature a center seam that runs along the front and back of the garment. They measure 11-15 ½ inches in length from the top of the waistband to the hemmed bottom, depending on the size. In particular, style SBW0771X12 featureswhat Protestant calls an “inseam crotch panel,” which isa diamond shaped fabric sewn into the crotch area that is tacked onto the completed garment at the four corners. Styles SBW0712X12 and SBW0771X12 were entered on May 23, 2022, under 2 subheading 6108.21.00, HTSUS, which provides for “[w]omen’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Briefs and panties: of cotton.” On October 27, 2022, U.S. Customs and Border Protection (“CBP”) issued a Notice of Action (“CBP Form 29”) advising Protestant that the subject entry would be rate advanced and the correct classification for styles SBW0712X12 and SBW0771X12 is subheading 6104.62.20, HTSUS, which provides for “[w]omen’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.” Protestant asserts that the garments should be classified as entered under heading 6108, HTSUS. ISSUE: Whether the garments at issue are classified as shorts under heading 6104, HTSUS, or as underwear under heading 6108, HTSUS? LAW AND ANALYSIS: Initially, we note that the matter is protestable 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 entries. (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. 1401-23-107538 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). 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 GRIs 2 through 6 may then be applied in order. The 2022 HTSUS headings under consideration are as follows: 6104: 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: 6108: Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: ***Protestant contends that thephysical construction of styles SBW0712X12 and SBW0771X12 suggests that they are underwear classified in heading 6108, HTSUS, rather than outwear shorts classified in heading 6104, HTSUS. Specifically, Protestant states that the 3 subject garments are underwear because of their thin fabric, which does not provide for modesty making them impractical for use as outerwear or loungewear. Moreover, Protestant provides that the garments are extremely sheer. To support this claim, Protestant references several reviews by Amazon.com customers who have commented on the level of sheerness of the garments, which makes them impractical for use as outerwear. Protestant also provides that the garments fit close to the body so that they cannot be worn over other clothes as outerwear would. Furthermore, Protestant points out that style SBW0712X12 features what they call an “inseam crotch panel,”which is said to be typical for underwear. Protestant alsosuggeststhat because the garments at issue do not feature seams on the sides, buttons, zippers, pockets,and other features associated with outerwearthat they are properly classified as underwear. Lastly, Protestant provides information on how the garments are marketed and sold to further demonstrate that these productsare underwear. The Court of International Trade (“C.I.T.”)has addressed the tariff classification of underwear and outerwear. In particular, in Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 496-497(1995), the C.I.T. discussed the tariff classificationissue of whether women’s woven cotton boxer style shorts were classifiable as “outerwear”under heading 6204, HTSUS, or as “underwear”under heading 6208, HTSUS.The C.I.T. found that the shorts were underwear based on the presence of a flyon the garments which is a physical characteristic of garments that are underwear.Id. at 505. The C.I.T.also looked at the fact that the shorts were designed to be worn as underwear and were marketed as such. Id. at 505-506. Likewise, in St. Eve International, Inc. v. United States, 27 C.I.T. 758, 763 (2003), the C.I.T. noted that fabric used for underwear and intimate apparel should be soft to the touch, light weight, and preferably weighing 180 grams per square meter or less. Thus, in determining the classification of imported garments, we must examine the physical characteristics of the article. If the article is ambiguous in design and not clearly recognizable, CBP will examine extrinsic evidence such as marketing materials and documentation incidental to the purchase and sale of the merchandise. SeeHeadquarters Ruling Letter (“HQ”) 967185, dated October 8, 2004 (outlining that CBP’s policy is to carefully examine the physical characteristics of garments at issue; to be supplemented with a consideration of extrinsic evidence when necessary); and HQ 962021, dated September 19, 2001, (stating that when a garment is not clearly recognizable as either underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc.). It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. As such, when classifying garments, the merchandise itself may act as strong evidence of its use. Mast Industries, Inc. v. United States, 9 C.I.T. at 552 (citing United States v. Bruce Duncan Co., 50 C.C.P.A. 43, 46 (1963)). With respect to the tariff classification of women’s underwear and outerwear, CBP has opined onthesubjectin several cases.In HQ 085682, dated December 22, 1989, in classifying a women’s crop top as underwear, CBP defined underwear as “garments which are ordinarily worn under other garments and are not exposed to view when thewearer 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.” Moreover, in HQ 085682, CBP provided that the women’s crop top was underwear “due to the sheerness of the garment,” further stating that 4 “modesty wouldprevent its being worn in public.” Likewise, in HQ 965979, dated January 8, 2003, CBP classified a women’s brief that had an elasticized waist and a sewn-in lining at the crotch in heading 6108, HTSUS, as underwear. In making that determination, CBP stated that the characteristics of the brief indicated that it was underwear, specifically noting that “[t]he fabric and styling of the merchandise at issue indicates that the garment is intended for use as underwear.” CBP also commented that “[t]he finely knit material is thin, soft and flexible for a comfort fit traditionally associated with women’s briefs and panties,” and that the brief “[i]n all respects… hasthe characteristics of a garment that is worn as underwear.” In contrast, in HQ 961185, dated June 11, 1999, CBP classified a pair of women’s boxer shorts made of 100% cotton knit fabric, featuring an enclosed waistband, a 4½ inch long and 1¾ inch deep fly front, and plain hemmed leg openings in heading 6104, HTSUS, as shorts rather than in heading 6108, as underwear. CBP based its classification on the physical appearance of the garments that demonstrated that the principal use of the garments was not that of underwear. Specifically, CBP noted that “the fabric of the garment is not one usually associated with underwear” and that the knit cotton fabric is “acceptable as an outwear fabric, and “not too light-weight or sheer for the garment to be worn as outwear.” CBP concluded by stating that “the type of fabric and the design and construction of the garment make it likely that women will wear this garment as either outerwear shorts or for lounging in the comfort of one’s home.”Likewise, in HQ 963414, dated November 15, 1999, CBP classified a women’s knitted lower body garment made of 90% cotton and 10% spandex fabric in heading 6104, HTSUS, as shorts. In deciding that the garment was not classified in heading 6108, HTSUS, as underwear, CBP stated that “unlike women’s underwear garments, which traditionally feature a gusset and cotton lining in the crotch, these features are absent in the subject garment.” In the instant case, based on the physical characteristics of women’s garment styles SBW0712X12 and SBW0771X12, we find that they are not underwear classified in heading 6108, HTSUS. The garments are made of 95% cotton, and 5% spandex knit fabric. They are like the women’s shorts in HQ 963414 made of 90% cotton and 10% spandex fabric, which CBP classified in heading 6104, HTSUS, as shorts, instead of heading 6108, HTSUS, as women’s underpants. They are also like the women’s boxer shorts in HQ 961185 made of 100% cotton knit, which CBP stated was made of fabric not usually associated with underwear. Likewise, we find that the knit fabric used in the construction of the garments at issue here is also not typical of women’s underwear. The fabric, albeit thin, is a heaver weight of fabric than is typically used and the type of knit is uncommon for women’s underwear. Thus, we do not agree that these garments are so sheer or so thin akin to the women’s briefs in HQ 965979 to suggest that the garments are underwear. Moreover, there are no features of styles SBW0712X12 and SBW0771X12 that would make these garments impractical for use as outerwear or that modesty would prevent women from wearing them in public. In fact, the fabric of these garments is typical of many outerwear garments, and these products would be appropriate for wear alone. Also, while we agree that the garments at issue are worn close to the body of the wearer, as CBP stated in HQ 085682, this is not a determining factor for undergarments. Bathing suits and diapers are also worn close to the body, and they are not considered underwear. Lastly, the garments do not have a gusset or lined crotch. Protestant points out that Style SBW0712X12 features what is described as an “inseam crotch panel.” We disagree. Style SBW0712X12 has a 5 diamond shaped piece of fabric in the crotch area of the garment that is attached to the garment at the four corners of the fabric after the garment is completed. This feature is not typical of underwear. While not dispositive, most underwear has a crotch panel or gusset that is incorporated into the undergarment as part of the standard assembly process. See HQ 963414 (stating that women’s underwear garments traditionally feature a gusset and cotton lining in the crotch). Furthermore, we conclude that since the garments at issue are not ambiguous in design, there is no need to consider extrinsic evidence provided by Protestant that the garments are marketed and sold as underwear. As a result, we find that styles SBW0712X12 and SBW0771X12 are not classified in heading 6108, HTSUS, as underwear. Protestant cites to several CBP rulings in support of its argument that the garments at issue should be classified in heading 6108, HTSUS, as underwear. For example, Protestant cites to HQ H060003, dated April 19, 2010, where CBP classified several styles of panties in heading 6108, HTSUS. The panties featured 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.” As such, they were deemed “private and intimate apparel which do not appear loose fitting.” CBP also noted that “[m]atching 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.” As a result, CBP found that “the physical characteristics of the panties … suggest[ed] classification as underwear in subheading 6108.21.0010, HTSUSA.” Protestant also cites to New York Ruling Letter (“NY”) N064493, dated June 26, 2009, where CBP classified several woman’s brief styled panties in heading 6108, HTSUS, that were constructed from mostly nylon, and some spandex, and were made with a lined crotch panel. Likewise, Protestant cites to HQ 966288, dated, June 12, 2003, where CBP classified a panty in heading 6108, HTSUS, that belonged to a matching set with a camisole. The panty featured an elasticized waistband trimmed with nylon lace. The garments in this case can be distinguished from the underwear in HQ H060003, NY N064493, and HQ 966288 because the physical characteristics of the garments indicated that they are underwear unlike the garments in this case. First, the panties in HQ H060003 and HQ 966288 were part of a matching set of panties and camisoles which is indicative of underwear. Second, the panties in HQ H060003 and the panty in HQ 966288, featured lace on the waistband, and the panties in HQ H0600003 featured a bow on the front, these physical characteristics are indicative of privacy and intimacy, which are not physical characteristics that the garments in this case have. Third, the panties in NY N064493 were made mostly of nylon and spandex which is a common underwear fabric, unlike the fabric used in the garments here, and lastly the panties in NY N064493 featured a lined crotch panel which is common feature in underwear, a feature that the garments at issue here do not have. Instead, we find that the garments at issue are properly classified in heading 6104, HTSUS, as shorts. Shorts in heading 6104, HTSUS, is an eo nomine provision with no limiting language regarding use. Protestant provides that the garments at issue do not feature side seams, buttons, zippers, pockets and other features associated with outerwear shorts. However, not all shorts include these features, and all forms of women’s shorts are classified in heading 6104, 6 HTSUS.Accordingly, based on the aforementioned, the subject women’s garments, styles SBW0712X12 and SBW0771X12, are classified in heading 6104, HTSUS, as shorts, and specifically subheading 6104.62.20, HTSUS, which provides for “[w]omen’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.” HOLDING: By application of GRI 1 and 6, the subject women’s shorts, styles SBW0712X12 and SBW0771X12, are classified in heading 6104, HTSUS, and specifically under subheading 6104.62.20, HTSUS, which provides for “[w]omen’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.” The 2022 column one, general rate of duty is 14.9% ad valorem. You are instructed to DENY the protest. You are instructed to notify the protestant of this decision no later than 60 days from the dateof this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, Yuliya A. Gulis, Director Commercial and Trade Facilitation Division