CLA-2 OT:RR:CTF:TCM H087355 CKG
Category: Classification
Tariff No.: 6104.42.00
Port Director
Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Re: Application for Further Review of Protest No. 2704-09-100432; classification of women’s chemise dress
Dear Port Director,
This is in reference to the Application for Further Review (AFR) of Protest Number 2704-09-100432, filed by counsel on August 26, 2009, on behalf of the importer, Richard Leeds International, Inc. (“Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of three styles of chemise dresses as underwear of subheading 6109.10.00 of the Harmonized Tariff Schedule of the United States (HTSUS).
The subject merchandise was entered on April 29, 2008, at the Port of Long Beach. CBP liquidated the entries on February 27, 2009, in heading 6109, HTSUS. Plaintiff claims classification in heading 6108, HTSUS.
FACTS:
The instant protest concerns three styles (W485943, W484903 and W485903) of chemise garments of Richard Leeds International, Inc.’s “Hannah Montana” line. A sample was submitted of style W485903. The sample is a sleeveless garment constructed of 100% cotton knit fabric extending down to the mid-thigh area. The shoulder straps measure approximately ¾ inches wide, with oval shaped front and rear necklines, a drop waistband measuring 2 ¾” wide that encircles the hip area. The lower seam of the drop waistband is gathered and sewn to a lower skirt portion. The garment has a hemmed bottom. “Hannah Montana” designs are printed on the upper front panels of the three styles.
ISSUE:
Whether the subject chemise dress is classified as a dress of heading 6104, HTSUS, sleepwear of heading 6108, HTSUS, or underwear of heading 6109, HTSUS.
LAW AND ANALYSIS:
The matter is protested 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 first entry for entries made on or after December 18, 2004. (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. 2704-09-102460 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a CBP Headquarters ruling or court decision.
Classification under the HTSUS is made 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 relevant 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 Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration in this case 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
Dresses:
6104.42.00: Of cotton . . .
* * * * *\
6108: Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
Nightdresses and pajamas:
6108.31.00: Of cotton……
* * * * *
6109: T-shirts, singlets, tank tops and similar garments, knitted or crocheted:
6109.10.00: Of cotton . . . .
Women's or girls':
6109.10.0037: Underwear (352) . . .
* * * * *
The garment at issue is referred to as a "chemise" which is a general term used to describe various types of garments. The term "chemise" may be used to describe a variety of clothing, i.e., a chemise dress, a chemise nightgown or a chemise slip. The term itself refers to the styling or cut of the garment as a simple, straight, loose hanging garment. See e.g., Headquarters Ruling Letter (HQ) 950503, dated June 19, 1992; HQ 955710, dated January 27, 1994.
The determination of whether garments are classifiable as underwear, sleepwear or multi-purpose apparel is controlled by the principal use of the garments. 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 of merchandise. See Additional U.S. Rule of Interpretation 1(a). In past rulings, CBP has stated that the most crucial factor in the classification of a garment is the garment itself. See HQ 966234, dated September 2, 2003.
Several court cases have addressed the classification of sleepwear v. underwear or outerwear. In St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the Court of International Trade ruled that the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear. Further, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of whether women’s boxer style shorts were classifiable as "outerwear" under heading 6204, HTSUS, or as "underwear" under heading 6208, HTSUS. The court stated the following, in pertinent part:
[P]laintiff’s preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff’s garments are merchandised sheds light on what the industry perceives the merchandise to be.
Further, evidence was provided that plaintiff’s merchandise is marketed as underwear. While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach.
In a recent informed compliance publication, CBP provided basic definitions of apparel terms that are commonly utilized in the HTSUS and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. The informed compliance publication discusses the difference between dresses and underwear:
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).
Underwear (6108, 6109) - is a term referring 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.
The informed compliance publication further discusses the difference between sleepwear and loungewear:
Sleepwear is characterized by a sense of privateness or private activity. On the other hand, garments that are not sleepwear may fall into various fashion categories, including “loungewear” or “leisurewear,” which are loose, comfortable casual clothes that can be worn in a variety of settings.
Loungewear may be worn at informal social occasions in and around the home, and for other non-private activities such as watching movies with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc. Loungewear garments will not be classified in the sleepwear headings, but in specific headings for the named articles.
Certain garments are also marketed as having multiple uses that may include sleeping. Such garments would not be classified as sleepwear, but in the specific headings for the named articles.
See CBP Informed Compliance Publication (ICP) on Classification: Apparel Terminology under the HTSUS.
When ruling on similar merchandise in the past, CBP’s policy has been to carefully examine the physical characteristics of the garments in question. When this has not proven substantially helpful, we consider other extrinsic evidence 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, i.e., purchase orders, invoices, and other internal documentation.
The styling of the instant merchandise is not characteristic of underwear; the knit material, the size and form of the chemise are not indicative of a garment that is worn under other clothing. Such a garment would have to be slim and form-fitting to avoid clinging to the outer garment and giving the wearer a bulky appearance. The instant garment is also appropriate for wear without other outer garments; there is nothing immodest or inherently private in the design. The garment’s physical characteristics therefore rule out classification in heading 6108, HTSUS, as underwear. What remains to be determined is whether the garment is classifiable as a dress of heading 6104, HTSUS, or as a nightdress of heading 6108, HTSUS.
The instant garment, as noted above, is not characterized by a sense of privateness or private activity as is typical of sleepwear. The material is not sheer or revealing, nor is it low cut. Nothing precludes the garment from being worn for informal social occasions in and around the home or even outdoors. Indeed, the garment fully conforms to the ICP description of a dress; it is a one-piece garment which encloses both legs in a single “tube,” and extends to the middle or lower thigh. The ICP on Apparel Terminology notes that such garments are considered loungewear, and as such will not be classified in the sleepwear headings, but in specific headings for the named articles.
Upon CBP’s request, Protestant submitted additional information concerning the environment of sale of the subject garments, including a copy of the licensing agreement that was entered into between Disney and Richard Leeds International, Inc. characterizing the merchandise as “nightgowns,” and a purchase order to show that styles W485943, W484903 and W485903 were sold to the “intimate apparel” department of Wal-Mart Stores. However, CBP has 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 e.g., HQ 966288, dated June 12, 2003, and rulings cited therein. It is also noted that Wal-mart sells similar merchandise in both its girls’ sleepwear and girls’ daywear departments. See http://www.walmart.com. Based on the foregoing, it is unclear how this merchandise is presented to the consumer.
Finally, the three chemise styles at issue are repeatedly described as “knit chemise daywear” on the commercial invoice, bill of lading, packing list, and certificate of origin. The chemise is described as a “nightdress” only on the entry summary. Similarly, in HQ 966288, the importer’s visas, commercial invoices, country of origin declarations, packing lists, airway bills and exporter’s declarations all described the merchandise as an undershirt and brief set. This contributed to CBP’s finding in that case that the subject garments were underwear.
We do not find that the evidence regarding the environment of sale is sufficient to establish that the garments are marketed, sold and used as sleepwear. On the other hand, the garments are characteristic of and can be worn in the same manner as a typical dress. Such a garment, even if marketed as sleepwear, is classified in the named heading for the specific article. As such, we find that the instant chemise garments are classified as dresses of heading 6104, HTSUS.
HOLDING:
By application of GRI 1, the instant chemise dress is classified in heading
6104, HTSUS, specifically subheading 6104.42.0020, HTSUS, 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: Dresses: Of cotton: Girls’ (336).” The 2009
general, column one rate of duty is 11.5% ad valorem.
Since reclassification of the merchandise will result in a lower rate of duty than the liquidated rate, you are instructed to allow 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 CBP Form 19, to the Protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on CBP’s website, located 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