CLA-2 RR:CR:TE 966288 RH
Area Director
Bureau of Customs and Border Protection
Building 77
JFK International Airport
Jamaica, NY 11430
Attn: Chief, Liquidation and Protest Branch
RE: Protest Number 4701-02-100955; Underwear Sets; Panties;
Camisole; Heading 6108; Heading 6109
Dear Sir:
This is in reply to your memorandum of February 6, 2003, forwarding Application for Further Review of Protest (AFR) number 4701-02-100955 to our office for a determination.
The law firm of Ross & Hardies timely filed the AFR on July 24, 2002, on behalf of Club House Creations, Inc., against three Notices to Redeliver issued by Customs (now Customs and Border Protection (CBP)) on May 2, May 28 and June 7, 2002.
The protestant entered the merchandise at issue as underwear under the Harmonized Tariff Schedule of the United States (HTSUS). Specifically, the protestant entered the camisole top in subheading 6108.92.0015, HTSUS. Merchandise entered under that tariff provision requires a visa for textile restraint category 652. The matching panty was entered under subheading 6108.22.9020, HTSUS. Merchandise entered under that tariff provision also requires a visa for textile restraint category 652.
In the Notices to Redeliver, CBP instructed the protestant that the correct classification of the camisole was under subheading 6109.90.1065, HTSUS and required a visa for textile restraint category 639.
In its protest, the protestant now claims that the camisole top is classifiable as sleepwear under subheading 6108.92.0030, HTSUS. The protestant does not dispute CBP’s classification of the matching panty under subheading 6108.92.0005, HTSUS.
Review of the protest is warranted pursuant to 19 CFR §§174.24 and 174.25.
We note that the protestant failed to redeliver the merchandise and liquidated damages are pending against the entries in this protest.
FACTS:
The protestant describes the merchandise as follows:
The subject merchandise is a sleepwear set consisting of a camisole-type top and underwear-type panty. There are seven styles at issue. . . .
The fabric used is a knit mesh of nylon. The fabric is sheer. The top covers the upper torso from just above the bodice to the midriff and does not extend to the waist. It has spaghetti straps of a stretch MMF material. The top has a scalloped hem and a gathered bodice. With two exceptions, the styles are identical but for color and pattern.
Styles 9204S24B and 9204S24C differ in three respects. The neck is square cut and is not trimmed with lace. The other styles have a V-neck and are trimmed in lace. Also except in these two styles, the bodice is outlined in lace and has a ribbon bow in the center of the bodice….
The bottom is the same in all sets and is an underwear-type panty with an elasaticized waistband trimmed with nylon lace. The same material outlines the leg openings.
Counsel for the protestant sent us a sample of the set that he claims is representative of the garments entered in this protest action.
ISSUE:
Whether the camisole tops and matching brief sets are classifiable as underwear or as sleepwear.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUS) 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings.
Neither the chapter notes nor the EN’s shed light on the difference between underwear and sleepwear camisole tops. Furthermore, as the terms “camisole” and “underwear” are not defined in the legal notes to the HTSUS nor in the corresponding EN’s, we look to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988) (“Guidelines”) for assistance.
The Guidelines define “underwear” as follows:
The term “underwear” refers 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; . . .
It should be noted that in distinguishing underwear, it is generally agreed that sleeveless tops with lace inserts or lace edgings are predominately worn as underwear.
Moreover, in HQ 951182, dated June 18, 1992, we stated that underwear is defined as "Underclothes." The Fashion Dictionary, by Mary Brook Picken, at 397. Underclothes are defined on page 396 as "Garments worn under other clothes, including those worn next to skin." In Webster's II, New Riverside University Dictionary, 1984, at 1259, underwear is defined as "Clothing worn under the outer clothes and next to the skin."
In past rulings, CBP has stated that the crucial factor in the classification of a garment is the garment itself. As stated by the court in Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (Ct. of App’ls for Fed. Cir., April 1, 1986), “the merchandise itself may be strong evidence of use”. However, when presented with a garment which is ambiguous and not clearly recognizable as sleepwear, underwear, loungewear or outerwear, CBP will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. 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. For instance, CBP recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, 16 Ct. Int’l Trade 407 (1992).
Consideration of marketing information, and the design and construction details of the garments are instructive in determining whether or not they are principally used as outerwear or underwear. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that in the absence of context to the contrary, 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 or merchandise.
Counsel agrees that the “panties” are clearly underwear but argues that it would not be practical to use the camisole tops as underwear because they exhibit physical characteristics consistent only with use as sleepwear, i.e., the top is loose-fitting and is not suitable for wear under another garment. Additionally, counsel argues that the knit material is relatively stiff and will not conform to the shape of the body, as would a garment suitable for use as underwear. Also, the length (midriff) and scalloped hem are inconsistent with use as underwear and the colors are bold and would show through outerwear. Counsel further argues that the ribbon trim would be seen under outerwear garments.
Additionally, counsel states that the commercial documentation is ambiguous but “is not less supportive of classification as sleepwear than it is of classification as underwear.” Counsel further states that the protestant is in the sleepwear trade and that the garments were sold to four retailers that sell the garments as sleepwear. To substantiate this claim, counsel submitted purchase orders from Charlotte Russe, Dots Stores, Inc., Maidenform, Inc., and Mandees department stores.
The term “intimate” as used on the Charlotte Russe and Dots label could indicate sleepwear, underwear, or other apparel, such as loungewear, sold in the “intimate” department. “Department J” from Mandees is said to be the sleepwear department, however, there is no indication as to the type of goods sold through that department. The Maidenform purchase order is through the “daywear” department. There is also no indication as to the types of garments sold through that department. In fact, we have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outerwear. See HQ 955341 of May 12, 1994 and rulings cited therein; HQ 952105 of July 21,1992; HQ 085672 of October 29, 1989; and HQ 955088 of December 14, 1993. CBP has rejected claims that imported merchandise should be classified solely on how a company characterizes itself, its product line or where it locates its business. HQ 961185, dated June 11, 1999.
Furthermore, counsel for the protestant argues that the garments at issue will be marketed as sleepwear. While counsel has not submitted evidence to identify the sales environment of the subject garments, he claims that similar garments are marketed as sleepwear. However, the importer’s visas, commercial invoices, country of origin declarations, packing lists, airway bills and exporter’s declarations all describe the merchandise as an undershirt and brief set.
We have examined a sample of the camisole and matching panty and in our opinion they are underwear. Contrary to counsel’s claims, the camisole is not loose fitting or made of stiff material. The ribbon and colors of the fabric are not inconsistent with use as underwear. Furthermore, in the following rulings CBP classified camisoles similar to the ones at issue imported with matching panties as underwear under subheading 6109.90.1065 and subheading 6108.22.9020, respectively: 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; NY D83058, dated October 9, 1998. See also HQ 953390, dated June 1, 1993, in which CBP stated that a tank-styled pullover classifiable in subheading 6109.90.1065 and “sold with a matching panty could be viewed as somewhat persuasive evidence that it is indeed underwear.”
We note that the camisole is not classifiable under subheading 6108.92.0015, HTSUS, as claimed upon entry, because that provision does not encompass upper body garments. See HQ 951246, dated June 24, 1992.
Finally, although counsel does not contest CBP’s liquidation of the panty under subheading 6108.92.0005, we find that the item is properly classified as entered under subheading 6108.22.9020, HTSUS.
HOLDING:
You are instructed to DENY the protest, except to the extent reclassification of the panty as indicated above results in a partial allowance.
The camisole is classifiable under subheading 6109.90.1065, HTSUS, which provides for “T-shirts, singles, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers: Tank tops and singlets: Women’s.” It is dutiable under the 2002 HTSUS at the general column one rate at 32.4 percent ad valorem, and the textile category is 639.
The matching panty is classifiable under subheading 6108.22.9020, HTSUS, 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 man-made fibers: Other: Women’s.” It is dutiable at the 2002 HTSUS general column one rate at 16.2 percent ad valorem, and the textile category is 652.
In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be attached to the Customs Form 19, Notice of Action, and furnished 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 (on that date) the Office of Regulations and Rulings will take steps to make the decision available to CBP personnel via the Customs Ruling Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division