Lerner New York, Inc. v. United States, No. 07-00361 (Ct. Int'l Trade 2013)

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Slip Op. 13-56 UNITED STATES COURT OF INTERNATIONAL TRADE LERNER NEW YORK, INC., Plaintiff, Before: Timothy C. Stanceu, Judge v. Court No. 07-00361 UNITED STATES, Defendant. OPINION [Determining the tariff classification of a women s garment] Dated: May 1, 2013 Frances P. Hadfield, Alan R. Klestadt and Robert B. Silverman, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY. Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Justin R. Miller and Karen V. Goff), of New York, NY for defendant United States. With her on the briefs were Tony West, Assistant Attorney General and Barbara S. Williams, Attorney in Charge, International Trade Field Office. Of counsel on the briefs was Michael W. Heydrich, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of New York, NY. Stanceu, Judge: Plaintiff Lerner New York, Inc. ( Lerner )1 brought this action to contest the tariff classification that U.S. Customs and Border Protection ( Customs or CBP ) applied to a women s garment made of predominantly-nylon knitted fabric and containing an interior 1 Plaintiff Lerner New York, Inc. ( Lerner ) is now known as New York & Company. Joint Pretrial Order ( JPO ), Schedule C ¶ 1 (Nov. 28, 2011), ECF No. 49. Through 2005, Lerner was a subsidiary of Limited Brands, the parent company of Victoria s Secret Direct, LLC. Pls. Post-Trial Br. 11 n.3 (Feb. 22, 2012), ECF No. 67; Tr. 31. Court No. 07-00361 Page 2 fabric insert marketed as a shelf bra. The garment, Lerner style number 9843233, was marketed under the description Bodyshaper and imported by Lerner in July 2005. Compl. ¶¶ 7, 15 (Oct. 10, 2007), ECF No. 2; Pl. s Ex. 1. The garment is worn on the upper body, has narrow straps, and has no shoulder or neck coverage. Id. ¶¶ 16, 21, 24. Defendant United States maintains that the Bodyshaper is properly classified in a residual provision for knitted garments made of man-made fibers, as Customs determined upon liquidation. Answer 4 (Mar. 13, 2008), ECF No. 7. Plaintiff claims classification of the Bodyshaper as a brassiere or similar article. Based on the findings of fact and conclusions of law stated herein, reached following a bench trial, the court concludes that the tariff classification determined by Customs upon liquidation, and advocated before the court by defendant, is correct. I. BACKGROUND Lerner entered a shipment of Bodyshapers on May 27, 2005 at the Port of Long Beach, California on entry number 113-3085123-6. Compl. ¶¶ 2-3; Summons (Jul. 12, 2007), ECF No. 1 (Court No. 07-00260).2 The commercial invoice described the garment as Ladies 92 pct nylon 8 pct spandex knitted top bodyshaper w/ shelf bra. Joint Pretrial Order, Schedule C ¶ 4 (Nov. 29, 2011), ECF No. 52 ( JPO ). Upon liquidating the entry on April 7, 2006, Customs classified the merchandise in subheading 6114.30.10, Harmonized Tariff Schedule of the United States ( HTSUS ) (2005) ( Other garments, knitted or crocheted: Of man-made fibers: Tops ), 2 Lerner s challenge to the classification of style number 9843233 (the Bodyshaper ), was originally included in Court No. 07-00260. Summons (Aug. 12, 2007), ECF No. 1 (Court No. 07-00260). On September 27, 2007, the court ordered, on Lerner s unopposed motion, that protest number 2704-06-101253 and entry number 113-3085123-6 be severed from Court No. 07-00260. Court No. 07-00361 was assigned to an action brought on the severed protest and entry. Order (Sept. 27, 2007), ECF No. 1. Court No. 07-00361 Page 3 at 28.2% ad val.3 Compl. ¶ 9; Answer 4. Lerner timely protested the determination of classification on June 27, 2006 (protest no. 2704-06-101253). Summons 3. Customs denied the protest on February 2, 2007 without issuing an official ruling. Id. On August 12, 2007, Lerner timely filed its summons, id., and on November 21, 2007, Lerner filed its complaint, claiming classification in subheading 6212.90.00, HTSUS ( Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other ), at 6.6% ad val., Compl. ¶¶ 10-25. Due to the presence of common issues of fact, the court directed that this case be tried jointly with Victoria s Secret Direct, LLC v. United States, Court No. 07-00347.4 The parties submitted identical post-trial briefing in the Victoria s Secret and Lerner actions. Pls. Post-Trial Br. (Feb. 22, 2012), ECF No. 67 ( Pl. s Mem. ); Def. s Post-Trial Mem. of Law (Feb. 22, 2012), ECF No. 66. Plaintiff responded to defendant s post-trial brief on March 23, 2012. Resp. to Def. s Post-Trial Br. (Mar. 23, 2012), ECF No. 70 ( Pl. s Resp. ).5 3 Because the entry at issue in this case occurred in 2005, the court s citations to the Harmonized Tariff Schedule of the United States ( HTSUS ) are to the 2005 version. 4 Victoria s Secret Direct, LLC v. United States, Court No. 07-00347, involved the classification of a garment marketed as the Bra Top, a women s sleeveless outerwear garment made of knit fabric that contained an interior fabric insert marketed as the shelf bra. Compl. ¶¶ 6, 18 (Nov. 21, 2007), ECF No. 5 (Court No. 07-00347). In those respects, the Bra Top was similar to the garment at issue in this action. 5 Following submission of post-trial briefs, defendant filed a motion to strike portions of plaintiff s post-trial brief and a motion for oral argument. Def. s Mot. (1) To Strike and Disregard Certain Portions of Pls. Post-Trial Brs. and (2) To Req. Oral Arg. 3, 8 (Mar. 1, 2012), ECF No. 68. Plaintiff opposed defendant s motion to strike but not its motion for oral argument. Pls. Resp. in Opp n to Def. s Mot. to Strike and Disregard Certain Portions of Pls. Post-Trial Br. 1-2, 12 (Mar. 20, 2012), ECF No. 69. The court denied defendant s motion to strike and also its motion for oral argument. Order (May 1, 2013), ECF No. 71. Court No. 07-00361 Page 4 II. DISCUSSION The court exercises jurisdiction over this action pursuant to Section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(a).6 In cases contesting the denial of a protest, the court makes its findings of fact de novo based upon the record made before the court, 28 U.S.C. § 2640(a). The plaintiff has the burden of establishing that the government s classification of the subject merchandise was incorrect but does not bear the burden of establishing the correct classification; instead, it is the court s independent duty to arrive at the correct result, by whatever procedure is best suited to the case at hand. Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984). In making this determination, the court must consider whether the government s classification is correct, both independently and in comparison with the importer s alternative. Id. While [t]he proper scope and meaning of a tariff classification term is a question of law[,] . . . determining whether the goods at issue fall within a particular tariff term as properly construed is a question of fact. Franklin v. United States, 289 F.3d 753, 757 (Fed. Cir. 2002) (citations omitted). On questions of law, a classification decision of Customs may be accorded a respect proportional to its power to persuade. United States v. Mead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). But when Customs has summarily denied a protest of the classification without issuing an official ruling, the court considers the parties arguments without deference. Hartog Foods v. United States, 291 F.3d 789, 791 (Fed. Cir. 2002). Pursuant to 28 U.S.C. § 2639(a)(1), a trial begins with a statutory presumption of correctness for the factual components of a Customs classification decision. To overcome the presumption, the party challenging that decision must produce a preponderance of evidence on a 6 All statutory citations herein are to the 2006 edition of the United States Code. Court No. 07-00361 Page 5 disputed factual question. See Universal Elecs., Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir. 1997). In the resolution of disputed facts, the merchandise itself is often a potent witness. Simod Am. Corp. v. United States, 872 F.2d 1572, 1578 (Fed. Cir. 1989) (citations omitted). Classification under the HTSUS is determined according to the General Rules of Interpretation ( GRIs ) and, if applicable, the Additional U.S. Rules of Interpretation ( ARIs ). GRI 1 requires that tariff classification, in the first instance, be determined according to the terms of the headings and any relative section or chapter notes. GRI 1, HTSUS. The chapter and section notes of the HTSUS are not optional interpretive rules but statutory law. Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed. Cir. 1999). Once imported merchandise is determined to be classifiable under a particular heading, a court must look to the subheadings to find the correct classification of the merchandise in question. Orlando Food Corp. v. United States, 140 F.3d 1437, 1440 (Fed. Cir. 1998) (citations omitted). Tariff acts are construed to carry out the intent of Congress, which is initially determined by looking at the language of the statute itself. Rubie s Costume Co. v. United States, 337 F.3d 1350, 1357 (Fed. Cir. 2003) (citations omitted). When a tariff term is not defined in either the HTSUS or its legislative history, the term s correct meaning is its common or dictionary meaning in the absence of evidence to the contrary. Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001) (citations omitted). In the absence of a showing of a commercial designation, the common meaning and commercial meaning of a tariff term are presumed to be the same. Id. at 1048-49; see also Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). In construing tariff terms, the court may consult lexicographic and scientific authorities, dictionaries, and other reliable information or may rely on its own understanding of the terms used. Baxter Healthcare Corp. v. United States, 182 F.3d 1333, Court No. 07-00361 Page 6 1337-38 (Fed. Cir. 1999) (citation omitted). Although not legally binding, the Explanatory Notes ( ENs ) to the Harmonized Commodity Description and Coding System ( Harmonized System or HS ), maintained by the World Customs Organization, may be consulted for guidance and are generally indicative of the proper interpretation of a tariff provision. Degussa Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 2007) (citing Motorola, Inc. v. United States, 436 F.3d 1357, 1361 (Fed. Cir. 2006)). Where a tariff term has various definitions or meanings and has broad and narrow interpretations, the court must determine which definition best expresses the congressional intent. Richards Medical Co. v. United States, 910 F.2d 828, 830 (Fed. Cir. 1990). In this action, plaintiff claims classification of the Bodyshaper in subheading 6212.90.00, HTSUS ( [b]rassieres, girdles, corsets . . . and similar articles . . . whether or not knitted or crocheted: Other ), at 6.6% ad val. The government advocates classification of the Bodyshaper in subheading 6114.30.10, HTSUS ( Other garments, knitted or crocheted: Of man-made fibers: Tops ) at 28.2% ad val. Based on the factual findings and conclusions of law set forth below, the court determines that the Bodyshaper is properly classified in subheading 6114.30.10, HTSUS. The court rejects plaintiff s classification claim because the Bodyshaper does not answer to the article description for heading 6212, HTSUS. A. Findings of Fact Pertaining to the Bodyshaper The following uncontested facts were agreed to by the parties in the joint pretrial order entered by the court on November 29, 2011:7 7 Certain uncontested facts in the joint pretrial order are taken from defendant s response to plaintiff s first request for admissions directed to defendant, plaintiff s exhibit 6. Pursuant to (continued ¦) Court No. 07-00361 Page 7 1. The marketing name for Lerner style 9843233 is the Bodyshaper. JPO, Schedule C ¶ 14. 2. The commercial invoice describes the Bodyshaper as a [l]adies 92 pct nylon 8 pct spandex knitted top bodyshaper w/ shelf bra. JPO, Schedule C ¶ 4. 3. The Bodyshaper is made of knit fabric that is 92% nylon and 8% spandex. JPO, Schedule C ¶¶ 8-9. 4. The Bodyshaper is an upper body garment designed to be worn next to the skin and without a separate brassiere. JPO, Schedule C ¶¶ 7, 24-25. 5. The Bodyshaper contains an interior fabric layer inside the upper portion of the garment, referred to as a shelf bra, which is designed to cover the bust. JPO, Schedule C ¶¶ 11, 13. 6. The built-in shelf bra is attached solely at the top of the garment, the bottom of the shelf bra not being attached to the outside fabric layer of the garment. JPO, Schedule C ¶¶ 27-28. 7. The built-in shelf bra has an elastic band at the bottom.8 JPO, Schedule C ¶ 12. 8. The built-in shelf bra is designed to be form-fitting over the bust of the wearer.9 JPO, Schedule C ¶ 23. 9. The Bodyshaper has adjustable 3/8 straps that go over the wearer s shoulders. JPO, Schedule C ¶¶ 16, 21-22. 10. The Bodyshaper is sold in sizes XS-XL. JPO, Schedule C ¶¶ 18-19. (continued ¦) USCIT Rule 36(b), the admissions contained in defendant s response are deemed conclusively established as no motion for withdrawal or amendment of the admissions has been made. 8 Defendant s response to plaintiff s first request for admissions contains an admission that the elastic band of the shelf bra is designed to be worn under the bust of the wearer. Pl. s Ex. 6 (Resp. 19). 9 Defendant s response to plaintiff s first request for admissions contains an admission that the shelf bra changes the natural shape of the breasts of the wearer, Pl. s Ex. 6 (Resp. 16), while providing more breast support than a T-shirt, id. at Resp. 38, and support and lift comparable or superior to that of soft-cup brassieres produced by Hanro and Wacoal, id. at Resps. 35-36. Court No. 07-00361 Page 8 1. Findings of Fact Established by Non-Testimonial Evidence From its in camera inspection of two samples of the Bodyshaper, admitted into evidence as plaintiff s Exhibit 11 and defendant s Exhibit A, the court finds, by a preponderance of the evidence, certain facts pertaining to the physical characteristics of the Bodyshaper, as follows. One sample is a size medium in fuchsia and the other a size medium in celadon green; each is a knitted garment made up of opaque fabric labeled as 92% nylon and 8% spandex, a fabric that has an elastic stretch quality. Pl. s Ex. 11, Def. s Ex. A. The garment has a low neckline shaped to form a wide U at the front, with the fabric tapering upward to the shoulders, where the 3/8 hem sewn on to the upper edge of the garment converges with the straps. Id. The neckline in the back of the garment is straight rather than U-shaped. Id. The garment s 3/8-inch-wide straps do not appear to be comprised of the body fabric of the front of the garment, but rather, appear to be integral with the hem sewn onto the upper portion of the body fabric, each strap consisting of a double thickness of the hem fabric. Id. Each strap contains a ring and a slider, allowing the length to be adjusted by the wearer. Id. In the back of the garment, the straps are fastened to the rings, which are fastened to the upper portion of the Bodyshaper s body fabric with short straps consisting of a double thickness of the hem fabric. Id. The shelf bra component consists of an internal layer of the same fabric that forms the body of the garment but with a sewn-on elastic band, approximately 7/8 wide, extending the entire circumference of the bottom of the shelf bra component. Id. Other than the straps, no component of the shelf bra is visible from the outside of the Bodyshaper. Id. The shelf bra is formed from two pieces of fabric (front and back) that are sewn together and that together extend around the entire upper, inner portion of the garment. Id. The fabric immediately above the elastic band is gathered by Court No. 07-00361 Page 9 the band. Id. The top of the shelf bra is attached to the body of the garment only at the upper hem of the garment and is attached around the entire circumference of the upper hem. Id. From the other exhibits, the court finds, by a preponderance of the evidence, the following facts. 1. Lerner s technical package describes the Bodyshaper as Clean Finished Bodyshaper Cami, and Lerner s knit internal classification report describes the Bodyshaper as [t]op, Bodyshaper w/shelf bra. Pl. s Exs. 3, 4. 2. Lerner s knit internal classification report indicates that the Bodyshaper extends to the waist. Pl. s Ex. 4. 3. Lerner s website marketing materials for the Bodyshaper depict the garment being worn with pants or a skirt, and often with no layering garment being worn over the Bodyshaper. Pl. s Ex. 5. 4. Lerner s website marketing materials for the Bodyshaper sometimes refer to the garment as a cami and at other times refer to the Bodyshaper as a tank. Pl. s Ex. 5. 5. Lerner s internal merchandising materials ( metropak ) indicate that the Bodyshaper can be worn as a layering piece under Jackets and Sheer or Low Cut Tops. Pl. s Ex. 18. 2. Findings of Fact Established by Testimonial Evidence At trial, Lerner produced one witness who testified on various factual matters relevant to the merchandising and technical design of the Bodyshaper, one witness who testified on various factual matters relevant to the support provided by the Bodyshaper, and one witness, identified as an expert, who testified on various matters relevant to brassiere design, construction, and fitting. Defendant produced a single witness, identified as an expert, who testified on various matters related to brassiere fitting, sale, and marketing. From the evidence on the record made before the court, the court makes findings of fact as set forth below. Court No. 07-00361 Page 10 a. Findings of Fact Established by the Testimony of Ms. Hope Grey Lerner introduced the testimony of Ms. Hope Grey, executive vice president of product life management and corporate initiatives for New York & Company. Tr. 37. Ms. Grey testified that she has worked for New York & Company in various roles, including director of quality assurance, vice president of technical design and quality assurance, and senior vice president of technical design and quality assurance of product development. Id. at 36-37. She also testified that she previously worked as a technical designer of soft-cup brassieres for Federated Department Stores ( Federated ) and U.S. Shoe Corporation s Casual Corner division, in addition to serving in various managerial roles at those companies in which she oversaw technical design, quality assurance, and production. Id. at 35-36, 110. In addition, Ms. Grey testified that she learned to measure models while a technical designer at Federated and that she has measured hundreds of models for each of the companies at which she has worked. Id. at 146-47. The court found her testimony as a fact witness credible based on her demeanor and demonstrated knowledge concerning the technical design, fitting, and merchandising of the Bodyshaper, in addition to the technical design of soft-cup brassieres. Ms. Grey s testimony established, by a preponderance of the evidence, the following facts. 1. The Bodyshaper is comprised of two parts, an inner shelf bra component and outer shell, which covers the torso and is supported by two straps. Tr. 57. 2. The Bodyshaper is designed to be worn as a top without a bra and it can also be worn as a layering piece with either a blouse, jacket, or sweater over it. Tr. 59-60. 3. The Bodyshaper is intended to be worn in public. Tr. 104. 4. One of the purposes of the Bodyshaper is to provide modesty to the wearer. Tr. 154. 5. The straps of the Bodyshaper are the thickness they are [s]o that it is like a bra and it has minimal exposure [] when you re wearing it underneath another garment. Tr. 58. Court No. 07-00361 Page 11 6. In response to changing fashion trends as pants rises became lower, and in response to customer feedback for more coverage, the outer shell of the Bodyshaper was lengthened in select colors. Tr. 140. 7. The Bodyshaper is still sold today and is known as the Original Bodyshaper. Tr. 103. 8. The inner fabric portion, elastic underbust band, and straps of the Bodyshaper work together to support the bust. Tr. 159. 9. By raising or lowering the position of the bust using the Bodyshaper s adjustable straps, the wearer can change the garment s comfort factor. Tr. 155. 10. The spandex used in the Bodyshaper gives the garment stretch and recovery so that the garment can be worn by someone whose bust is larger or smaller than the size for which the garment is designed. Tr. 144. 11. The Bodyshaper s shelf bra does not have molded cups. Tr. 155. 12. Ms. Grey participated in a fitting of the Bodyshaper in November of 2009 with a fit model, the witness Christina Trainer, during which Ms. Grey performed the physical measuring. Tr. 45-47, 72, 145-46. 13. At the November 2009 fitting, Ms. Grey confirmed through measurement that the Bodyshaper provided bust support and lift when fitted to Ms. Trainer. Tr. 46-47, 54-57, 72-73, 83, 86, 92. b. Findings of Fact Established by the Testimony of Ms. Christina Trainer Ms. Christina Trainer appeared as fact witness for plaintiff. Ms. Trainer testified that she is a professional fit model specializing in the fitting of lingerie and swimsuits. Tr. 183, 187. Ms. Trainer testified that she has fitted thousands of garments in the six years she has been a model, including brassieres and shelf bra camisoles produced by Lerner. Id. at 188, 190, 200, 207-08, 221. The court found Ms. Trainer s testimony as a fact witness to be credible based on her demeanor and the detail of her testimony regarding the fitting of the Bodyshaper. Her testimony established, by a preponderance of the evidence, the following facts. 1. At the fitting conducted in November 2009, Ms. Trainer perceived that the Bodyshaper she modeled was more supportive than the Hanro style 1200 and the Wacoal style 835140 soft-cup brassieres, which she also modeled. Tr. 195, 209, 224-25. Court No. 07-00361 Page 12 2. Ms. Trainer considered the November 2009 fitting to have been conducted in the same manner as a typical fitting. Tr. 222. 3. Ms. Trainer was compensated for her fitting of the subject merchandise. Tr. 209. 4. When the November 2009 fitting was conducted, Ms. Trainer was unaware that the fitting was intended to be used for litigation purposes. Tr. 222. c. Findings of Fact Established by the Testimony of Ms. Alexandra Armillas Lerner introduced the testimony of Ms. Alexandra Armillas, a witness identified by plaintiff as an expert on the design of brassieres and other garments. Ms. Armillas testified that she is a tenured full-time assistant professor and intimate apparel liaison in the fashion design department at the Fashion Institute of Technology in New York City, where she has taught for the past ten years. Tr. 380-81. Ms. Armillas testified that she has designed numerous brassieres in her career and also has designed garments similar to the Bodyshaper. Id. at 384, 480. Based on her credentials and experience, the court concludes that Ms. Armillas qualifies as an expert in the design of brassieres and in garments identical or similar to the Bodyshaper. The court found her testimony on the design of these garments to be credible based on her demeanor and the knowledge she demonstrated in her testimony and expert witness report, plaintiff s exhibit 19. By a preponderance of the evidence of record, including Ms. Armillas expert testimony, the court finds the following facts. 1. A garment known in the apparel industry as a shelf bra camisole combines a camisole and a brassiere in a single garment, so that a third piece, a separate brassiere, need not be worn underneath. Tr. 401, 403. 2. A shelf bra camisole is designed for two purposes, coverage and support. Tr. 403. 3. The Bodyshaper is a type of shelf bra camisole. Tr. 461. Court No. 07-00361 Page 13 4. In the early 1990s, Ms. Armillas designed shelf bra camisoles. Tr. 480.10 5. The Bodyshaper cannot be separated into two independently functioning garments because the straps would have to be used for both garments. Tr. 470-71. 6. The Bodyshaper s cup, underbust band, and straps all work together to provide support to the wearer s bust. Tr. 409. 7. The straps of the Bodyshaper are not integral with the body of the garment, i.e., the straps are not built up from the fabric that constitutes the body of the garment. Tr. 479-80. 8. The shelf bra feature of the Bodyshaper provides support in a manner identical to that of soft-cup brassieres produced by Wacoal and Hanro. Tr. 401. 9. Ms. Armillas conducted a fitting of the Bodyshaper in August 2010 with Ms. Trainer as the fit model. Tr. 399-400. 10. At the August 2010 fitting, Ms. Armillas confirmed visually and through measurement that the Bodyshaper provided bust support as a result of the presence of the shelf bra. Tr. 409, 453. d. Testimony of Ms. Cindy Johnson Defendant introduced at trial the testimony of Ms. Cindy Johnson, who testified that since 1998 she has owned and operated a small lingerie boutique in Denver, Colorado that sells high-end brassieres and other women s garments. Tr. 497-98. In particular, she testified that her store sells traditional European brassieres, id. at 555-56, at retail prices upwards of $110, id. at 555. She added that her store does not sell the Bodyshaper but sells garments that Ms. Johnson considers to be somewhat similar to the Bodyshaper. Id. at 533. Without objection from plaintiff, defendant moved to qualify Ms. Johnson as an expert witness in the fitting of bras, the components of bras, the function of bras and the purpose of bras in a woman s wardrobe, a motion the court granted. Id. at 534-35. Ms. Johnson testified, 10 In using the term camisole, Ms. Armillas explained that she was referring to a type of garment worn on the upper body that usually covers the body from the top of the breast to the waist. Tr. 408. Court No. 07-00361 Page 14 inter alia, that in her opinion the Bodyshaper is a camisole and not a bra because, in her opinion, the main purpose of a bra is as a foundation garment that provides shape and support and lift. Id. at 538-39. Ms. Johnson s testimony, taken as a whole, did not state or imply that the Bodyshaper fails perform a body support function. See id. at 538. 3. Summary of Principal Findings of Fact Pertaining to the Support Function of the Bodyshaper From the facts upon which the parties agreed in the joint pre-trial order, as well as a preponderance of the evidence introduced to the record at trial, the court finds that the Bodyshaper is designed to provide support to the bust of the wearer. Tr. 59, 154, 401, 403, 409, 453. The court also finds, from a preponderance of the evidence produced at trial, that a Bodyshaper, style number 9843233, provided a certain degree of such support when worn at the fitting of Ms. Trainer, the fit model, and that this fitting involved a Bodyshaper in Ms. Trainer s correct garment size. Id. at 46-47, 72-73, 406, 409. B. Conclusions of Law Pertaining to the Choice of Heading for the Bodyshaper The court first considers whether plaintiff has shown the government s classification of the Bodyshaper in subheading 6114.30.10, at 28.2% ad val, to be incorrect. Jarvis Clark Co., 733 F.2d at 876. The court concludes that plaintiff has not made this showing. The court sets forth its reasoning below. 1. The Bodyshaper Is Properly Classified under Heading 6114, HTSUS The court s inquiry begins with GRI 1, under which the court considers terms of headings and any relative section and chapter notes. GRI 1, HTSUS. The headings of section XI of the HTSUS ( textiles and textile articles ) encompass various textile materials, fabrics, and articles, including articles of apparel. Within the section, chapter 61 ( Articles of apparel and clothing accessories, knitted or crocheted ) applies only to made up knitted or crocheted articles. Court No. 07-00361 Page 15 Note 1 to ch. 61, HTSUS. Chapter 62 applies only to made up articles of any textile fabric other than wadding, excluding knitted or crocheted articles (other than those of heading 6212). Note 1 to ch. 62, HTSUS (emphasis added). Because the first question is whether the government s classification has been shown to be incorrect, Jarvis Clark Co., 733 F.2d at 876 (citations omitted), the court first will determine, according to GRI 1, whether the Bodyshaper answers to residual heading 6114. The court concludes that it does. None of the preceding headings of chapter 61 includes a knit outerwear garment such as the Bodyshaper, which is an outerwear garment designed to provide bust support. Nor do the terms of the article description for heading 6212 correctly describe the Bodyshaper. Heading 6114 includes the term [o]ther garments, knitted or crocheted. Heading 6114, HTSUS. The Bodyshaper is a knitted garment. JPO, Schedule C ¶ 8. As shown by the relevant Explanatory Note, heading 6114 is a residual provision that covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter [6101-6113]. EN 61.14. The Bodyshaper is not described by the terms of any heading in the group 6101-6113, HTSUS.11 Of those headings, only two, headings 6106 and 6109, deserve more than passing mention. 11 Described very generally and as relevant to the question presented here, the scopes of the HTSUS headings in the group pertain to the following types of knitted or crocheted garments: men s and boy s coats (6101); women s and girls coats (6102); men s and boy s suits, ensembles, jackets, overalls, trousers, and shorts (6103); women s and girls suits, ensembles, jackets, dresses, skirts, overalls, trousers, and shorts (6104); men s shirts (6105); women s shirts and blouses (6106); men s underwear other than undershirts (6107); women s underwear other than undershirts (6108); T-shirts, singlets, tank tops and similar garments, for both sexes (6109); sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles (6110); babies clothing (6111); track suits, ski-suits and swimwear (6112); and garments made of coated fabrics (6113). Court No. 07-00361 Page 16 Heading 6106, HTSUS, with the article description [w]omen s and girls blouses, shirts, and shirt-blouses, knitted or crocheted, does not describe the Bodyshaper, which for tariff classification purposes is not a blouse, shirt, or shirt-blouse. The General Explanatory Note to HS chapter 61 provides that [s]hirts 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. EN to ch. 61. The Bodyshaper lacks sleeves and an opening starting at the neckline. The General Explanatory Note to HS chapter 62 adds that [b]louses are also designed to cover the upper part of the body but may be sleeveless and without an opening at the neckline. EN to ch. 62. Therefore, sleeveless blouses are not excluded from heading 6106 (cf. note 4 to ch. 61, HTSUS ( Heading 6105 [men s and boy s shirts] does not cover sleeveless garments )), but the Bodyshaper does not conform to any common definition of the term blouse. As applied in the context of a women s garment, the definition of a blouse is a loose-fitting garment covering the body from the neck to the waist or just below, made with or without a collar, sleeves, or belt, and worn over or tucked inside a waistband (as of a skirt). Webster s Third New International Dictionary of the English Language (Unabridged) 239 (1993) ( Webster s Dictionary ). The Bodyshaper is not loose fitting, and it has a low neckline, no part of which extends upward as high as the wearer s neck. Pl. s Ex. 11, Def. s Ex. A. The scope of heading 6109, HTSUS, which carries the article description T-shirts, singlets, tank tops and similar garments, knitted or crocheted, does not include a garment such as the Bodyshaper, which contains a component (the shelf bra component) designed to provide bust support. In Victoria s Secret Direct, LLC v. United States, 37 CIT __, Slip Op. 13-55 (2013) ( Victoria s Secret Direct ), this Court construed the scope of heading 6109, HTSUS, Court No. 07-00361 Page 17 which was the heading principally advocated by the government for classification of the garment (the Bra Top ) at issue in that case. This Court concluded that heading 6109, HTSUS, which is limited to undershirts and garments adapted from undershirts as outerwear, was never intended to include a garment such as the Bra Top, which like the Bodyshaper featured an internal bust-supporting component marketed as a shelf bra. Id. at __, Slip Op. 13-55, at 16-27. The Bra Top at issue in Victoria s Secret Direct, a knitted women s outerwear garment with no sleeves, a scooped neck in the shape of a wide U, and narrow straps, was highly similar to the Bodyshaper at issue in the case at bar. The only significant differences were that the Bra Top had non-adjustable straps and was made up of fabric of predominantly cotton, as opposed to synthetic, fiber.12 JPO, Schedule C ¶¶ 9, 16; Pl s. Ex. 11; Joint Pretrial Order, Schedule C ¶ 4 (Nov. 28, 2011), ECF No. 53 (Court No. 07-00347); Pl. s Ex. 3 (Court No. 07-00347). Like the Bra Top, the Bodyshaper falls outside of the intended scope of heading 6109, HTSUS ( T-shirts, singlets, tank tops and similar garments, knitted or crocheted ) because of the presence of the bust-supporting shelf bra component. The drafters of the Harmonized System used terms for HS heading 61.09 ( T-shirts, singlets and other vests, knitted or crocheted ) signifying that all garments classifiable under the heading are undershirts or outerwear garments adapted from undershirts. See EN 61.09 (giving as an example of a heading 61.09 garment a T-shirt with pictures or writing). As effectuated in the HTSUS, the article description for heading 6109 does not use the term vests (which in British English, but not in American English, refers principally to undershirts) and includes the term tank tops. However, there was no intent on the part of Congress, when modifying the heading to use American English 12 Also, the Bra Top had a wide U-shaped neck opening in the back rather than a straight neck opening at the back, as does the Bodyshaper. Pl. s Ex. 3 (Court No. 07-00347). Court No. 07-00361 Page 18 terminology, to expand the heading beyond the scope intended by the drafters of the HS. See Victoria s Secret Direct, 37 CIT at __, Slip Op. 13-55, at 20-27. As the opinion in that case also noted, upper-body underwear garments with bust-supporting features (which are classified under heading 6212) are expressly excluded from heading 6109 by note 2(a) to chapter 61, HTSUS, and it would be unwarranted to conclude that an outerwear bust-supporting garment could find classification under heading 6109 simply because it is designed to be worn as outerwear. Id. at __, Slip Op. 13-55, at 19-20. To attempt to classify a garment such as the Bra Top or Bodyshaper under heading 6109 would be to expand the scope of the heading impermissibly, beyond that intended by the drafters of the HS and the Congress. Plaintiff claims that the Bodyshaper is properly classified under heading 6212, HTSUS. Plaintiff cites note 2(a) to chapter 61 ( [t]his chapter does not cover . . . [g]oods of heading 6212 ) in support of this claim, arguing, inter alia, that the government s classification within chapter 61 is inconsistent with this note. Pl. s Mem. 46-47; Pl. s Resp. 26-27; Compl. ¶¶ 10-22. The court disagrees. For plaintiff to have a valid claim, the Bodyshaper must fall within the intended scope of heading 6212, HTSUS, as signified by the terms of that heading ( Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted ). The court concludes, to the contrary, that the Bodyshaper falls outside the intended scope of the heading. Of the eo nomine terms in heading 6212, only the term brassiere conceivably could describe the Bodyshaper. However, the court s research has not found a standard dictionary definition of the term brassiere to which the Bodyshaper conforms, and plaintiff offers none. EN 62.12 instructs that the heading includes [b]rassieres of all kinds, connoting that a garment not designed to be worn as underwear, such as one of a class of garments referred to in Court No. 07-00361 Page 19 commerce as sports bras, falls within the scope of the heading. Indeed, one Webster s definition of brassiere is a woman s close-fitting undergarment having cups for bust support, varying in width from a band to a waist length bodice, made with or without straps, and often boned or wired for additional support or separation; also: an adaptation of this garment for sportswear. Webster s Dictionary 269.13 The Bodyshaper is neither a women s undergarment designed to provide bust support (as required by the common definitions of brassiere ) nor an adaptation of such an undergarment for sportswear (i.e., a sports bra). The court concludes that the Bodyshaper is not defined by the eo nomine term brassiere as used in heading 6212, HTSUS. The court next considers whether the Bodyshaper is described by the term and similar articles contained within the heading 6212 article description. In determining tariff classification under the HTSUS, the Court of Appeals has construed a general term or phrase such as and similar articles according to the statutory construction principle of ejusdem generis.14 In classification cases, ejusdem generis requires that . . . the merchandise must possess the same essential characteristics or purposes that unite the listed examples preceding the general term or phrase. Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999) (citing Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995)). Classification 13 Other lexicographic sources confine the definition of brassiere to an article of underwear. Oxford English Dictionary defines a brassiere as [a] woman s undergarment worn to support the breasts. 2 Oxford English Dictionary 494 (2d ed. 1989). The Fairchild Dictionary of Fashion, a lexicographic source for the fashion and apparel industry, specifies that a brassiere is [a] shaped undergarment worn by women to mold and support the breasts. The Fairchild Dictionary of Fashion 463 (3rd ed. 2003). 14 Ejusdem generis is [a] canon of construction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed. Black s Law Dictionary 594 (9th ed. 2009). Court No. 07-00361 Page 20 . . . is appropriate only if the imported merchandise shares the characteristics or purpose and does not have a more specific primary purpose that is inconsistent with the listed exemplars. Id. (citations omitted). The Explanatory Note to heading 62.12 identifies two classes of articles that are classified under the heading: articles of a kind designed for wear as body-supporting garments and supports for certain other articles of apparel . . . . EN 62.12. All of the exemplars in the heading 6212 article description brassieres, girdles, corsets, braces, suspenders, and garters have as their essential characteristic and purpose either support of a part of the body or support of a garment. The Bodyshaper provides bust support, but it would be inconsistent with facts the court found in this case to conclude that body support is the essential characteristic or purpose of this garment. As the court found by a preponderance of the evidence, the Bodyshaper combines in one garment an outer camisole shell and a shelf bra brassiere. See Tr. 57 (testimony of Ms. Grey), Tr. 401, 403, 461 (testimony of Ms. Armillas). The outer shell, which is not a brassiere, provides the coverage to the torso required of a garment designed to be worn as an outerwear top. The uncontested facts establish that the outerwear shell provides partial covering of the wearer s torso for warmth and modesty. JPO, Schedule C ¶¶ 7, 24-25; Tr. 59-60 (testimony of Ms. Grey that the Bodyshaper was designed to be worn as a top or as a layering piece with either a blouse, jacket, or sweater over it ), 104, 154. And as the court found from its in camera examination of the samples, the outerwear camisole shell component entirely conceals the shelf bra component, other than the straps, and extends well below the shelf bra component.15 15 As the court also found by a preponderance of the evidence, the shelf bra component of the subject garment requires for its function the straps that also are necessary to the camisole (continued ¦) Court No. 07-00361 Page 21 Pl. s Ex. 11, Def. s Ex. A. The larger of the two components, the camisole shell is entirely dissimilar to a brassiere. Although the fabric of the outer shell is elastic and thereby provides somewhat of a compression along the torso and somewhat of a slimming appearance to the body, Tr. 59 (testimony of Ms. Grey), the court does not consider the record evidence sufficient to allow the court to reach a finding of fact that the outer shell, when considered apart from the shelf bra, is designed to achieve a body support function. As the court also found, it is the shelf bra component that provides bust support to the wearer. The court notes, further, that the Bodyshaper does not conform to an established meaning of the fashion term bodyshapers : undergarments designed to control and support the figure. Also called shapewear. The Fairchild Dictionary of Fashion 463 (3rd ed. 2003) ( Fairchild Dictionary ) (emphasis added). The three garments listed as exemplars in heading 6212 brassieres, girdles, and corsets are almost invariably designed to be worn as undergarments, and the one exception, the sports bra, is by definition an adaptation of a body-supporting undergarment designed for use as sportswear. In contrast, the Bodyshaper is an outerwear garment with an outer camisole shell that does not provide body support but conceals the shelf bra, extends to the waist, and allows the Bodyshaper to serve its outerwear purpose. In summary, the court concludes that the Bodyshaper is not a garment of a type that is properly classified under heading 6212, HTSUS, being dissimilar to the garments listed in the article description with respect to the essential characteristic and as to purpose. The facts as found by the court are sufficient to demonstrate that the shelf bra component of the Bodyshaper is similar in construction and purpose to some types of brassieres, notably soft-cup brassieres (continued ¦) component. Tr. 57, 159 (testimony of Ms. Grey); Tr. 470-71 (testimony of Ms. Armillas). In that respect, the shelf bra component cannot, by itself, be described as a complete brassiere. Court No. 07-00361 Page 22 with a single cup and an elastic underbust band. See, e.g., Tr. 70 (testimony of Grey); Tr. 401, 409, 453 (testimony of Ms. Armillas). Those same facts do not allow the court to conclude that the Bodyshaper on the whole is similar to a brassiere or to any other garment or article named in the heading. Discussing the consideration of the characteristics or purposes of an article, the Court of Appeals has instructed that the analysis must consider the imported merchandise as a whole. Avenues in Leather, Inc., 178 F.3d at 1246 (emphasis added). And as the Court of Appeals further stated, [w]hen imported merchandise contains additional nonsubordinate or coequal characteristics or purposes than a specific article listed as an exemplar, the merchandise is not classifiable as that article. Id. (citation omitted). Plaintiff makes several arguments in support of its heading 6212 classification claim that were considered and rejected by this Court in Victoria s Secret Direct, 37 CIT at __, Slip Op. 13-55, at 34-38. The arguments advanced by Lerner are substantively identical to those of Victoria s Secret Direct, as each plaintiff submitted identical joint post-trial briefing. See Pl. s Mem. 25 (stating that [t]he [Victoria s Secret Direct] Bra Top and Lerner Bodyshaper are within the scope of Heading 6212 because they incorporate a brassiere, which is one of the exemplars in the heading, and they are similar to articles found eo nomine in the heading ); Compl. ¶¶ 11-26 (Nov. 21, 2007), ECF No. 5 (Court No. 07-00347). Considering those arguments anew, the court concludes that the arguments are not persuasive for the determination of classification of the Bodyshaper. The court sets forth its reasoning below. In support of its primary classification claim, Lerner advances an argument grounded in GRI 1 and one reliant on GRI 3. Plaintiff s GRI 3 argument is that heading 6212 is preferred to headings 6109 and 6114 by application of the rule of relative specificity, GRI 3(a), and if GRI 3(a) is not dispositive, heading 6212 is preferred as it is last in numerical order, Court No. 07-00361 Page 23 GRI 3(c).16 Pl. s Resp. 27-29; Pl. s Mem. 48-52. The court rejects this argument as a misapplication of the GRIs. GRI 3, which is not to be applied if the question of the proper heading is resolved by application of GRIs 1 and 2, applies if the merchandise is prima facie[] classifiable under two or more headings . . . . GRI 3, HTSUS. Note 2(a) of Chapter 61, HTSUS, which GRI 1 directs the court to consult along with the terms of the headings, excludes from chapter 61 (and therefore from heading 6114) the goods of heading 6212. Were the Bodyshaper described by a term of heading 6212, no relative section or chapter notes, GRI 1, HTSUS, would exclude it from that heading, and it would be classified thereunder regardless of relative specificity or the numerical order of the headings. Plaintiff s GRI 1 argument for classification of the Bodyshaper under heading 6212 alludes to the broad scope of that heading. Pl. s Resp. 23-26; Pl. s Mem. 47-48. Plaintiff argues that [w]hat is critical and material for classification under Heading 6212 is that the garment provides support, not that each and every component in the product be dedicated to performing the support function. Pl. s Resp. 24. Plaintiff cites Van Dale Indus. v. United States, 18 CIT 247, 1994 WL 118415 (1994) ( Van Dale I ) in making this argument, maintaining that the Bodyshaper has some support feature, which is what the garments in Heading 6212 have in common. Id. at 25; Pl. s Mem. 29-30. Plaintiff s GRI 1 argument misconstrues the meaning of the term and similar articles as used in heading 6212. As the court discussed supra, garments other than the named garments (brassieres, girdles, and corsets) may be considered to be within the meaning of the term and 16 Plaintiff submits that GRI 3(b) is not implicated in this case because Bodyshapers are not [m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale . . . .[ ] Resp. to Def. s Post-Trial Br. 29 (Mar. 23, 2012), ECF No. 70 (quoting Photonetics, Inc. v. United States, 33 CIT ___, ___, 659 F. Supp. 2d 1317, 1333 (2009)). Court No. 07-00361 Page 24 similar articles only if body support is the essential characteristic and purpose of the merchandise when viewed as a whole, as it is for the three named garments. See Avenues in Leather, Inc., 178 F.3d at 1244, 1246 (citations omitted). It is insufficient for classification under heading 6212 that body support merely be among the characteristics or purposes of the garment. The shelf bra component, together with the adjustable straps that serve as components of both the outerwear shell and the shelf bra, allows the garment to perform the bust support function, but it is the outer shell, the largest component, that allows the Bodyshaper to function as an outerwear garment. The holding in Van Dale I does not support plaintiff s GRI 1 argument. The case involved women s or girls underwear tops classified by Customs under heading 6109, for which the importer claimed classification under heading 6108 as women s or girls underwear or in the alternative under heading 6212. Van Dale I, 18 CIT at 247, 1994 WL 118415 at **1. In Van Dale I, the Court of International Trade noted that the garment in question d[id] not provide support to the breasts or to any other body part, denied the claim for classification in heading 6212, and affirmed the government s classification under heading 6109.17 18 CIT at 252, 1994 WL 118415 at **4. Plaintiff relies on the following statement in the opinion: Consistent with the Explanatory Notes, garments that provide little support would be properly classifiable under Heading 6212, whereas garments that provide no support at all would be classified elsewhere. Id. This statement is plainly dicta, the garment at issue in Van Dale I 17 On appeal, the plaintiff abandoned its claim for classification under heading 6212, and therefore the Court of Appeals, in affirming the judgment of the Court of International Trade, did not consider whether the garment at issue was classifiable under that heading. Van Dale Indus. v. United States, 50 F.3d 1012, 1014 n.1 (Fed. Cir. 1995). Court No. 07-00361 Page 25 having been found to provide no body support. No precedent binding in this case stands for the principle that heading 6212 encompasses any garment that provides but little support. Plaintiff argues that heading 6212 is proper because brassieres constitute the class or kind of garments to which the Bodyshaper belongs, as the Bodyshaper contains a brassiere, which is provided for eo nomine in heading 6212. Pl. s Mem. 30-37. Relying on the multifactor test sometimes used by courts to ascertain the class or kind of merchandise covered by a tariff provision, as set forth in United States v. Carborundum Co., 536 F.2d 373, 377 (1976) ( Carborundum ), plaintiff submits that [i]t is undeniable that the subject garments are designed, marketed, sold, and used as garments that provide support to the wearer in the same manner as a brassiere and should therefore be considered to be garments that are similar to brassieres--and that are provided for in Heading 6212. Id. at 37. Plaintiff s reliance on Carborundum is misplaced. Carborundum is a case decided under the former tariff, the TSUS. Under the HTSUS, a Carborundum analysis has been applied to determining class or kind of merchandise for purposes of a principal use provision governed by Additional U.S. Rule of Interpretation 1(a), HTSUS. See Aromont USA, Inc. v. United States, 671 F.3d 1310, 1312-13 (Fed. Cir. 2012). The question presented here does not involve the construction of the statutory term class or kind to which the imported goods belong (as does ARI 1(a)), but instead involves the question of whether a Bodyshaper is an article similar to the articles mentioned eo nomine in heading 6212. Moreover, even were the two legal tests considered to be the same, plaintiff s argument still would not be convincing. Any Carborundum analysis applied in this case would have to contend with the evidence that the class or kind of garments to which the Bodyshaper belongs must possess not only the support features of a brassiere but also the non-support features of an Court No. 07-00361 Page 26 outerwear top. Tr. 57, 59, 401, 403, 461. Plaintiff has not introduced evidence from which the court could find that the Bodyshaper belongs to a class or kind of garments identified in commerce by the term brassiere or any other term in heading 6212. Plaintiff argues that in classification rulings CBP has recognized administratively that advances in fashion and technology require the scope of Heading 6212 to be extended to outerwear garments that provide support. Pl. s Resp. 15. Relying on Customs classification rulings spanning the past twenty years, plaintiff points to several garments, including a sports bra, costume bustier, support shorts that provide a knee taping function, and heavily embellished brassieres, classified by Customs under heading 6212 despite being worn as outerwear. Id. at 14-21 (citing Customs HQ 951264 (July 1, 1992) (RE: Revocation of HRL 089778) (11/7/91) (sports bra); Customs HQ W968373 (Nov. 15, 2006) ( Gangsta Lady costume bustier); Customs HQ 965621 (Oct. 16, 2002) (knee support shorts); and Customs HQ 950685 (Mar. 11, 1992) (embellished underwire and long-line brassieres)). Plaintiff considers these rulings to demonstrate that it is clearly the support function (and not the characterization as underwear) that is the common feature of the items in Heading 6212. Id. at 22. Customs administrative rulings are not binding on the court, and rulings such as those cited by plaintiff are not entitled to deference where, as here, they do not pertain to the merchandise under consideration. Moreover, as the court discussed previously, the garments identified eo nomine in heading 6212 are either underwear support garments or adaptations of them (e.g., sports bras). The sports bra ruling plaintiff cites is not instructive because the Bodyshaper is not an adaptation of a brassiere and is not similar to a sports bra. Nor are the other Customs rulings plaintiff cites, even if presumed to be correct, instructive. The costume Court No. 07-00361 Page 27 bustier addressed in HQ W968373 and the knee support shorts of HQ 965621 are so dissimilar to the Bodyshaper as to provide no meaningful guidance in this case. Finally, plaintiff argues that classification of the Bodyshaper under heading 6212 is historically consistent with both the evolution of the modern tariff and the structure of prior tariff provisions. Pl. s Mem. 8, 52. According to plaintiff, [u]ltimately, the U.S. tariff has always contemplated that brassieres (and other support articles) may be attached to clothing. Id. at 57. In support of its position, plaintiff surveys predecessor tariffs, through which it attempts to demonstrate that the current tariff language demonstrates the drafters intent to include garments such as the Bodyshaper within heading 6212. Id. at 53-58. Plaintiff cites a term in the Tariff Act of 1930: [W]earing apparel or articles to which a brassiere[] . . . [or] similar body-supporting garment[] . . . is attached. Id. at 53 (citing Tariff Act of 1930, 71st Cong., 2d Sess., Ch. 497, p. 666, ¶ 1529(c) (1930)).18 Plaintiff s argument is unpersuasive because it is at odds with the proper construction of the terms in the heading 6212 article description. Further, plaintiff cites no legislative history to demonstrate an intent on the part of the drafters of the Harmonized System, or of the U.S. Congress when effectuating the HS in the HTSUS, that heading 6212 was ever intended to be so broad as to include a garment with the characteristics of the Bodyshaper. 2. The Bodyshaper Is Properly Classified in Subheading 6114.30.10, HTSUS Because the court concludes, for the reasons discussed above, that heading 6114, HTSUS is the appropriate heading for classification of the Bodyshaper by application of GRI 1, the 18 The court notes that the phrase similar articles used in heading 6212, HTSUS, corresponds to the phrase similar body-supporting garments in TSUS Item 376 (1963). In turn, the phrase similar body-supporting garments in the TSUS corresponds to the phrase all similar body-supporting garments in paragraph 1529(c) of the Tariff Act of 1930. The phrase all wearing apparel or articles to which, any of the foregoing . . . is attached does not appear in the language of the HTSUS. Court No. 07-00361 Page 28 remaining question is the determination of the appropriate subheading. Defendant claims classification under subheading 6114.30.10 ( Of man-made fibers: Tops ). Answer 4; Compl. ¶ 9. The court determines that this classification is correct. As required by GRI 6, the court determines the appropriate subheading from among the subheadings of heading 6114 according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules [GRIs 1 through 5], on the understanding that only subheadings at the same level are comparable. GRI 6, HTSUS. The first level of subheadings under heading 6114 (i.e., subheadings with six digits) divides the heading into four categories, based on the textile material of the fabric from which the garment is made. The Bodyshaper is a blend of 92% nylon and 8% spandex, JPO, Schedule C ¶ 9, both of which are man-made (or synthetic) fibers, see 16 C.F.R. § 303.7 (2005) (describing nylon and spandex as synthetic polyamides and polymers, respectively).19 Subheading 6114.30, HTSUS, which describes garments made [o]f man-made fibers, is thus the appropriate subheading.20 Within subheading 6114.30 are three potential subheadings at the next (eight-digit) level, which create categories based on garment type: subheading 6114.30.10 ( Tops ), subheading 6114.30.20 ( Bodysuits and bodyshirts ), and residual subheading 6114.30.30 ( Other ). The 19 16 CFR § 303.7 are regulations of the U.S. Federal Trade Commission ( FTC ) for the Textile Fiber Products Identification Act, which sets forth the generic names and definitions established by the FTC for manufactured fibers. See 16 CFR §§ 303.7(i), (k) (2005) (describing nylon as [a] manufactured fiber in which the fiber-forming substance is a long-chain synthetic polyamide in which less than 85 percent of the amide linkages are attached directly to two aromatic rings and spandex as [a] manufactured fiber in which the fiber-forming substance is a long chain synthetic polymer comprised of at least 85 percent of a segmented polyurethane ). 20 Of the other subheadings under heading 6114, HTSUS, subheading 6114.10.00 covers garments made [o]f wool or fine animal hair, subheading 6114.20.00 covers garments made [o]f cotton, and 6114.90 is a residual subheading that covers garments knitted [o]f other textile materials. The residual provision is thus limited to garments made of a natural fiber other than wool, fine animal hair, or cotton. Court No. 07-00361 Page 29 undisputed facts of this case demonstrate that the Bodyshaper answers to the description of subheading 6114.30.10 as a [t]op, which Fairchild Dictionary defines as a category of [c]lothing worn as a blouse or shirt substitute with pants or a skirt mainly for sportswear, and sometimes for evening. Fairchild Dictionary 34; see JPO, Schedule C ¶¶ 4, 7, 24-25. The Bodyshaper does not, on the other hand, answer to the term bodysuit or bodyshirt. Fairchild Dictionary 40 (defining bodysuit as a [o]ne piece fitted garment without legs having a snap crotch and bodyshirt as an adaptation of a bodysuit with a blouse or shirt style[,] in a variety of fabrics, suede, or leather ); Pl. s Ex. 11, Def. s Ex. A. As discussed previously, the Bodyshaper is dissimilar to a blouse or shirt, and the record facts do not support a conclusion that it is an adaptation of a bodysuit. Therefore, subheading 6114.30.10, HTSUS, is the correct subheading. III. CONCLUSION For the reasons stated above, the court concludes that the correct tariff classification for the Bodyshaper is subheading 6114.30.10, HTSUS, subject to duty at 28.2% ad val., the tariff classification and rate of duty determined by Customs upon liquidation. Judgment will enter accordingly. /s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: May 1, 2013 New York, New York

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