CLA-2: RR:CTF:TCM H044561 KSH
Port Director
U.S. Customs and Border Protection
Protest & Control
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
RE: Application for Further Review of Protest 4601-08-101367
Dear Port Director:
This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 4601-08-101367, filed by Sherry Singer, Esq., on behalf of her client, Gazy Tees, Inc.
In reaching our decision herein, additional consideration has been given to the substance of a meeting held with counsel for protestant on June 9, 2009 and a supplemental submission dated August 6, 2009.
FACTS:
The merchandise at issue consists of two styles of 100% cotton knit garments that both feature a rib knit crew neckline, long or short hemmed sleeves and a straight hemmed bottom extending to approximately mid-thigh. One of the garments additionally features a hood with a drawstring closure, full front zippered opening, long close-fitting cuffs and a close-fitting hemmed bottom band. The garments are imported in sizes XL-6XL.
The protest is against Customs and Border Protection’s (CBP)
classification and liquidation of thirty entries of garments as pullovers under heading 6110 of the Harmonized Tariff Schedule of the United States (HTSUS).
Between November 10, 2006 and June 21, 2007, protestant entered the merchandise subject to this protest in heading 6108, HTSUS, as ladies nightdresses.
A Notice of Action was issued on December 17, 2007, to rate advance the entry. The merchandise was liquidated in heading 6110, HTSUS, as pullovers on January 4, 2008.
On June 19, 2008, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in heading 6110, HTSUS. Protestant’s AFR request was approved.
ISSUE:
Whether the garments are classified in heading 6110, HTSUS, as pullovers, in heading 6108, HTSUS, as nightdresses or in heading 6104, HTSUS, as dresses or in heading 6114, HTSUS, as other garments.
LAW AND ANALYSIS:
Initially, we note that the matter protested 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. (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 the protest is warranted pursuant to 19 CFR §§174.24(b) and 174.25 as the protest is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, protestant cites to Headquarters Ruling Letters (HQ) 957634, dated September 13, 1995, HQ 088552, dated May 10, 1991, HQ 954560, dated October 12, 1993, HQ 965240, dated April 30, 2002, HQ 954703, dated March 25, 1994, HQ 953907, dated July 29, 1993 and New York Ruling Letter (NY) 811337, dated August 11, 1995.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation. 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 may then be applied.
The 2007 HTSUS headings at issue 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:
6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted:
6114 Other garments, knitted or crocheted:
In the Informed Compliance Publication, What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUS, dated June 2008, general guidelines are set forth concerning the classification of dresses, nightdresses and pullovers. They provide in relevant part:
Dresses (6104, 6111, 6204, 6209) - are one-piece garments for women or girls, covering the top of the body and extending to the mid-thigh vicinity and below. Fashion trends have also produced dresses of shorter length. Dresses are appropriate for wear without other outer garments, and their lower end encloses both legs in a single “tube” (rather than in two, as trousers do). Garments that are similar to divided skirts in that they have the appearance of a dress from the front but are not a single tube, but two tubes, are not classified as dresses. They are generally classified in provisions for other garments.
* * *
Nightdresses, pajamas and similar articles (women’s or girls’) (6108, 6208) - is a group of garments worn to bed for sleeping. 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. The lower part sometimes encloses the feet. One-piece garments worn to bed for sleeping are also classified in the subheading for nightdresses and pajamas.
* * *
The classification of women’s sleepwear separates is dependent on their condition as imported. 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. However, such garments imported separately (shipments of only tops or only bottoms) or if imported as extra components without a matching top or bottom in a shipment, are classified in the “similar articles” (i.e., “other”) provisions of this group. Classification of sleepwear separates in this manner is contingent on the garments first meeting the requirements of sleepwear.
* * *
Pullovers (6110, 6111) - are upper body knit garments without a full length opening, which are pulled over the head and are not more specifically provided for elsewhere in chapter 61.
* * *
As stated in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), at 552, "the merchandise itself may be strong evidence of use." When presented with a garment which is ambiguous in appearance, CBP looks 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. In HQ 962385, dated June 27, 1999, we noted that these factors should be considered in totality and that no one factor is determinative of classification.
Consistent with the aforementioned judicial precedent, CBP has classified oversized shirts as nightdresses when evidence is presented that the merchandise is designed, marketed and sold as a nightdress. See HQ 957634, dated September 13, 1995; NY 811337, dated August 11, 1995; NY A87299, dated October 2, 1996; HQ 951628, dated August 12, 1992 and; HQ 953591, dated June 3, 1993. Likewise, where there is ambiguity and insufficient evidence is submitted to support the claim that the merchandise is designed and sold as a nightdress, it will not be classified as such. See HQ 953834, dated August 19, 1993 and HQ 954426, dated August 26, 1993.
Counsel for protestant advised that the merchandise is sold in small stores such as convenience stores and gas stations. No advertising or marketing literature is available. In the absence of any evidence to support the claim that the merchandise at issue is designed, marketed and sold as a nightdress, classification in heading 6108, HTSUS, is precluded.
Similarly, no evidence has been presented to support protestant’s claim that the instant merchandise is a dress. Moreover, the overall design and length of the garment indicate that it would unsuitable for wear as a dress. See HQ 081592, dated July 21, 1998. During our meeting with counsel and in the supplemental submission additional arguments were presented that the entries are entitled to a claim of treatment under 19 USC §1625(c)(2). Section 177.12(c)(1) of the CBP Regulations (19 CFR 177.12(c)(1)) provides that the following rules will apply for purposes of determining whether a treatment was previously accorded by CBP to substantially identical transactions of a person:
(i) There must be evidence to establish that:
(A) There was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment;
(B) The Customs officer making the actual determination was responsible for the subject matter on which the determination was made; and
(C) Over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to all or substantially all of that person's Customs transactions involving materially identical facts and issues. Section 177(c)(ii) provides that the determination of whether the requisite
treatment occurred will be made on a case-by-case basis and will involve an assessment of all relevant factors. In particular, CBP will focus on past transactions to determine whether there was an examination of the merchandise by CBP or the extent to which those transactions were reviewed by CBP. Diminished weight will be given to transactions involving small quantities or values, and no weight to informal entries or transactions processed without examination or CBP officer review.
Section 177.12(c)(2)(iv) of the CBP Regulations, 19 CFR 177.12(c)(iv)),
provides that "(t)he evidentiary burden as regards the existence of the previous treatment is on the person claiming the treatment." Section 177.12(c)(iv), further states the following:
The evidence of previous treatment by Customs must include a list of all materially identical transactions by entry number (or other Customs assigned number), the quantity and value of merchandise covered by each transaction (where applicable), the ports of entry, the dates of final action by Customs, and, if known, the name and location of the Customs officer who made the determination on which the claimed treatment is based. In addition, in cases in which an entry is liquidated without any Customs review (for example, the entry is liquidated automatically as entered), the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry.
The information your client has provided up to this point does not
substantiate that protestant is entitled to a treatment. We note that though protestant has identified entry numbers, dates of entry and dates of final action by CBP, no ports of entry have been identified and, if known, the name and location of the CBP officer who made the determination on which the claimed treatment is based. In addition, protestant has not alleged or provided any evidence that any of the entries were examined by CBP, or that CBP import specialists received samples of the merchandise or entry documents prior to release of that merchandise. Therefore, protestant has not met the evidentiary burden required to substantiate the existence of a treatment claim.
HOLDING:
By application of GRI 1, the garments are classified in heading 6110, HTSUS, specifically, subheading 6110.20.20, HTSUS, which provides for: Sweaters, pullovers, sweatshirts, waistcoats (vests) or similar articles, knitted or crocheted: Of cotton: Other.” The general, column one rate of duty is 16.5% ad valorem. Since the rate of duty under the classification indicated above is the same as the liquidated rate, 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 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 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 Rulings Division