H323157

HQ H323157 June 9, 2023 OT:RR:CTF:FTM H323157 TJS CATEGORY: Classification TARIFF NOs.: 6104.63.20; 6106.20.20 Center Director U.S. Customs and Border Protection Apparel, Footwear & Textiles CEE 555 Battery Street, Room 401 San Francisco, CA 94111 Attn: Eddie Griffin, Import Specialist Re: Application for Further Review of Protest No. 2704-22-159074; Tariff Classification of Women’s 2-Piece Garment Sets Dear Center Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-22-159074 (“Protest”), timely filed on January 7, 2022, by Canada Inc., dba Jammers Apparel Group (hereinafter, “Protestant” or “Jammers”), concerning the tariff classification of several styles of women’s 2-piece garment sets under the Harmonized Tariff Schedule of the United States (“HTSUS”). Protestant has asked that certain information submitted in connection with this Protest be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. Certain information contained in the submission and the exhibits that you forwarded to our office will not be released to the public and will be withheld from published versions of this ruling. FACTS: The merchandise at issue consists of several styles of women’s 2-piece garment sets containing a matching top and pair of shorts. Each garment is constructed from 65% polyester, 35% rayon knit fabric. Protestant provided a sample set, Style 29007395. The sample blouse measures at least 10 or more stitches per linear centimeter measured in both directions. The loose-fitting top extends from the shoulders to below the waist and features a rib knit round neckline, short raglan unfinished sleeves, and a straight unfinished bottom. The pull-on shorts feature an elasticized waistband, a braided drawstring with wrapped knotted ends, and wide unfinished leg bottoms. According to Protestant, each set is imported and sold under a single style number. The subject merchandise was entered in subheading 6108.32.00, HTSUS, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightdresses and pajamas: Of man-made fibers.” U.S. Customs and Border Protection (“CBP”) liquidated the shorts in subheading 6104.63.20, 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: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other.” The tops were liquidated in subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” Protestant asserts that the garment sets should be classified as entered under heading 6108, HTSUS, as sleepwear. In support of this position, Protestant provided documentation that shows the sets are marketed and sold as sleepwear and states that the garments are sold in the sleepwear section of a retail store, to which it sold the merchandise. Protestant provided copies of invoices, a bill of lading, and purchase orders that refer to the garments as “sleepwear.” Protestant also states that Jammers is a sleepwear company. ISSUE: What is the tariff classification of the women’s 2-piece garment sets under the 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. 2704-22-159074 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because it involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts, but facts are alleged or legal arguments presented, which were not considered at the time of the original ruling. 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 2021 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: 6106: Women’s or girls’ blouses and shirts, 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: * * * * * Note 14 to Section XI, HTSUS, provides as follows: Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale. For the purposes of this note, the expression “textile garments” means garments of headings 6101 to 6114 and headings 6201 to 6211. * * * * * Note 4 to Chapter 61, HTSUS, provides as follows: Headings 6105 and 6106 do not cover garments with pockets below the waist, with a ribbed waistband or other means of tightening at the bottom of the garment, or garments having an average of less than 10 stiches per linear centimeter in each direction counted on an area measuring at least 10 cm by 10 cm. Heading 6105 does not cover sleeveless garments. “Shirts” and “shirt-blouses” are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline. “Blouses” are loose-fitting garments also designed to cover the upper part of the body but may be sleeveless and with or without an opening at the neckline. “Shirts”, “shirt-blouses” and “blouses” may also have a collar. * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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. 89-90, 54 Fed Reg. 35127, 35128 (Aug. 23, 1989). The EN to Chapter 61, HTSUS, provides in pertinent part: By application of Note 14 to Section XI, garments of different headings are to be classified in their own headings even if put up in sets for retail sale. This, however, does not apply to garments put up in sets which are specifically mentioned in the heading texts, for example, suits, pyjamas, swimwear. It should be noted that, for the application of Note 14 to Section XI, the expression “textile garments” means garments of headings 61.01 to 61.14. * * * * * The EN to 61.06 provides, in relevant part, as follows: This heading does not cover garments with pockets below the waist, with a ribbed waistband or other means of tightening at the bottom of the garment, or garments having an average of less than 10 stitches per linear centimetre in each direction counted on an area measuring at least 10 cm x 10 cm (see Chapter Note 4). * * * * * Protestant contends that the garments’ appearance and the extrinsic information provided establish that the subject articles are principall

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. 2704-22-159074 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because it involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts, but facts are alleged or legal arguments presented, which were not considered at the time of the original ruling. 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 2021 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:6106: Women’s or girls’ blouses and shirts, 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:* * * * *Note 14 to Section XI, HTSUS, provides as follows:Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale. For the p