St. Eve International, Inc. v. United States

Slip Op. 03 - 54

UNITED STATES COURT OF INTERNATIONAL TRADE

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ST. EVE INTERNATIONAL, INC., :

Plaintiff, :

v. : Court No. 03-00068

UNITED STATES, :

Defendant. :

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Opinion & Order

[Upon trial as to Customs notices to redeliver
imported camisoles, judgment for the plaintiff.]

Decided: May 15, 2003

Coudert Brothers (Robert L. Eisen and Christopher E. Pey) for
the plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Jack S. Rockafellow and Harry A. Valetk); and Office of
Assistant Chief Counsel, International Trade Litigation, U.S.
Bureau of Customs and Border Protection (Michael W. Heydrich), of
counsel, for the defendant.

AQUILINO, Judge: Discerning a trend in certain female

attire in America, the U.S. Customs Service, which has since become

the Bureau of Customs and Border Protection per the Homeland

Security Act of 2002, §1502, Pub. L. No. 107-296, 116 Stat. 2135,

2308-09 (Nov. 25, 2002), and the Reorganization Plan Modification

for the Department of Homeland Security, H.R. Doc. 108-32, p. 4

(Feb. 4, 2003), issued to St. Eve International, Inc. three notices
Court No. 03-00068 Page 2

on Customs Form 4647 to redeliver specified imported women's wear,

as well as notices of liquidated damages for failure to comply with

those redelivery demands.

I

The importer protested those demands and thereafter

commenced this case, praying for and obtaining expedited trial (and

now this decision) of its pleaded causes of action as to the

contested notices. Among other things, the complaint, which has

been amended, requests revocation of each notice and "such further

and additional relief as this Court may deem just, including

attorney's fees and costs of suit".

The trial began on April 9, 2003. Two days later,

Customs issued an apparent warning to the plaintiff that another of

its entries would be rejected if it failed to execute and return a

proffered Wearing Apparel Detail Sheet because

THERE ARE CURRENTLY SEVERAL ISSUES PENDING WITH RESPECT
[to] IMPORTATIONS OF WEARING APPAREL BY YOUR ACCOUNT ST.
EVE. INTERNATIONAL, SUCH AS PENALTY CASES, PROTESTS, AND
SUMMONS TO COURT. AS THE ISSUES CENTER AROUND CLASSI-
FICATION/QUOTA/VISA/ADMISSABILITY ISSUES, A REVIEW OF THE
PREVIOUS ENTRIES REVEALS THAT THE INVOICE DESCRIPTION
USED IS NOT SUFFICIENT TO ENSURE PROPER CLASSIFICATION.

Plaintiff's Exhibit 126, first page (capitalization in original).

Whereupon counsel pressed in open court for injunctive relief from

such, claimed harassment by the Bureau. See trial transcript

("Tr."), pp. 750-51.
Court No. 03-00068 Page 3

Whatever the precise intent of Customs or reaction of its

object at that moment of exchange, suffice it to state that the

record developed to date herein does not support the extraordinary,

additional equitable relief that the plaintiff is now also

requesting. Moreover, award of attorney's fees and expenses and

costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C.

§2412, requires that the court find that the position of the United

States was not substantially justified. Compare 28 U.S.C.

§2412(d)(1)(A) with Turtle Island Restoration Network v. Mallett,

24 CIT 627, 642-43, 110 F.Supp.2d 1005, 1018-19 (2000), aff'd in

pertinent part, rev'd on another ground in part, 284 F.3d 1282

(Fed.Cir.), reh'g on that ground denied, 299 F.3d 1373 (Fed.Cir.

2002), cert. denied, 155 L.Ed.2d 511 (2003). As recited in that

case,

a position can be justified even though it is not
correct, and we believe it can be substantially (i.e.,
for the most part) justified if a reasonable person could
think it correct, that is, if it has a reasonable basis
in law and fact.

24 CIT at 643, 110 F.Supp.2d at 1019, quoting Pierce v. Underwood,

487 U.S. 552, 566 n. 2 (1988). See also Gavette v. Office of

Personnel Management, 808 F.2d 1456, 1467 (Fed.Cir. 1986), and

cases cited therein.

Clearly, the record at bar shows that the government

satisfies at least this standard. That is, with regard to any

award under EAJA, the court cannot find that defendant's position

was not substantially justified.
Court No. 03-00068 Page 4

A

In both its complaint and amended complaint, the plain-

tiff erroneously pleads subject-matter jurisdiction pursuant to 19

U.S.C. §1581(a). In its answer to the latter, the defendant admits

jurisdiction over entry nos. 655-1151865-0 and 655-1152655-4 under

28 U.S.C. §1581(a)1 while denying any jurisdiction over the third

entry at issue, No. 655-1146249-52.

Concurring at the least with defendant's admission, the

court, having granted plaintiff's application for expedition of

this case3, proceeded to trial.

B

Goods encompassed by the entries numbered 655-1146249-5

and 655-1152655-4 were landed by the plaintiff under subheading

6109.10.0037 of the Harmonized Tariff Schedule of the United States

1
Defendant's admission as to these entries is conditioned
upon a "deni[al] that this Court has jurisdiction under 28 U.S.C.
§1581(a) with respect to the requested revocation of the Notices
of Liquidated Damages issued in connection [there]with". Pre-
trial Order, Schedule B-2. See Defendant's Answer, p. 1, para.
3; p. 6, paras. 4, 5, 6.
2
See id. See also Defendant's Pretrial Summary Memorandum,
p. 2, paras. 5-10; p. 4, para. 1.
3
That application was heard in open court. The defendant
continues its objection to expedition, asserting that this ap-
proach has been to its "undue and significant detriment." Pre-
trial Order, Schedule B-2, n. 1.

No evidence has been adduced, however, at either the hear-
ing or the trial in support of this assertion, and the record
developed does not somehow show otherwise.
Court No. 03-00068 Page 5

("HTSUS") (2002) at a rate of duty of 17.4 percent ad valorem and

subject to quota category 352. According to the plaintiff, entry

no. 655-1151865-0 merchandise, which arrived under HTSUS subheading

6108.91.0015 "[d]ue to an error by the broker"4, is also "properly

classified under subheading 6109.10.0037, HTSUS, subject to quota

category 352." Amended Complaint, para. 26. That provision is set

forth as follows:

T-Shirts, singlets, tank tops and similar garments,
knitted or crocheted:

Of cotton ........................................

* * *

Women's or girls':
Underwear (352) ........................

The defendant counters that the goods of entry no. 655-1151865-0 at

issue are properly classifiable under suffix 60 to this foregoing

subheading as "Women's or girls': . . . Other: . . . Tank tops:

Women's (339)" while those of the other two impleaded entries

belong under HTSUS subheading 6114.20.0010 (2002), to wit:

Other garments, knitted or crocheted:

* * *
Of cotton ........................................
Tops:

* * *

Women's or girls' (339) ...............

4
Amended Complaint, para. 22; Plaintiff's Pretrial Memoran-
dum of Law, p. 5.
Court No. 03-00068 Page 6

As indicated, both of the classifications posited by Customs

require a visa for category 339, which the importer did not

produce, ergo the Service's notices to redeliver.

The parties agree at bar that since the goods at issue

are garments, their classification is controlled by the use for

which they are donned. See, e.g., Pretrial Order, Schedules D-1,

D-2; Plaintiff's Pretrial Memorandum of Law, p. 10; Defendant's

Pretrial Summary Memorandum, p. 7 and Post Trial Brief, p. 3. Each

refers to HTSUS Additional U.S. Rule of Interpretation 1(a) that

a tariff classification controlled by use (other than
actual use) is to be determined in accordance with the
use in the United States at, or immediately prior to, the
date of importation of goods of that class or kind to
which the imported goods belong, and the controlling use
is the principal use[.]

They disagree, however, with respect to the class or kind to which

the imported goods belong5, although each side refers the court to

United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F.2d

373, cert. denied, 429 U.S. 979 (1976), among other cases, for

guidance in this regard. The merchandise in that particular case

was an iron-silicon alloy powder for use in the manufacture of

ferrous metals, but the parties take the position that the factors

applied in determining therein whether that merchandise fell within

5
Compare, e.g., Plaintiff's Pretrial Supplementary Memoran-
dum of Law passim and Plaintiff's Exhibit 124 with Defendant's
Pretrial Summary Memorandum, pp. 10-17 and Post Trial Brief, p. 2
and Tr., pp. 29-31, introducing Defendant's Exhibits BJ-1 and BJ-
2.
Court No. 03-00068 Page 7

a particular class or kind apply equally now to the women's wear

herein, to wit,

the general physical characteristics of the merchandise,
the expectation of the ultimate purchasers, the channels,
class or kind of trade in which the merchandise moves,
. . . the environment of the sale (i.e., accompanying
accessories and the manner in which the merchandise is
advertised and displayed . . .), the use, if any, in the
same manner as merchandise which defines the class, the
economic practicality of so using the import, the recog-
nition in the trade of this use.

63 CCPA at 102, 536 F.2d at 377 (citations omitted).

II

The parties stipulated in the pretrial order, and the

evidence adduced thereafter at trial confirmed, that St. Eve

International, Inc. is known in its industry as a women's underwear

or intimate apparel company which does not advertise or market

directly to the ultimate consumers. See Pretrial Order, Schedule

C; Tr., pp. 404-05. Among other offers of proof pre-trial was that

the defendant

does not dispute that the imported merchandise which is
the subject of this action, i.e., merchandise which has
been referred to as shelf bra camisoles and shelf bra
tank tops, is sold principally in the women's intimates
or underwear departments of walk-in retail stores, and
further, defendant will not introduce any evidence that
the imported merchandise is sold otherwise in walk-in
retail stores.

Pretrial Order, Schedule C-2, para. 3.
Court No. 03-00068 Page 8

A

Given the record since developed, the court is able to

enumerate the following findings of fact:

1. St. Eve International, Inc. is a New York corporation

with its principal place of business in the "lingerie building",

180 Madison Avenue, New York, New York. See Tr., pp. 87, 523.

2. That building and location in Manhattan are known in

the trade for underwear, intimate apparel, and sleepwear. See id.

at 89, 140-41.

3. Design of St. Eve merchandise takes place at that lo-

cation. See id. at 345.

4. St. Eve International, Inc. sells nothing but under-

wear and sleepwear. See id. at 53, 60-61.

5. The trade in general and buyers in particular con-

sider St. Eve International, Inc. only as a supplier of underwear

and sleepwear. See id. at 58. Cf. Plaintiff's Exhibit 85.

6. St. Eve International, Inc. does not deal with buyers

of sportswear. See Tr., pp. 63, 90.

7. St. Eve International, Inc. markets its camisoles as

underwear. See id. at 57.

8. St. Eve International, Inc. sells underpants that

match its camisoles. See id. at 60. See generally Plaintiff's

Exhibits 97 and 105. Compare Defendant's Exhibits BB and BC with

Exhibit BD.
Court No. 03-00068 Page 9

9. The stores that purchase St. Eve camisoles offer them

for sale in their lingerie and intimate-apparel departments. See

Tr., pp. 41, 46, 48-49, 160.

10. The lingerie and intimate-apparel departments of such

stores are "destinations" for shoppers as opposed to arenas of

casual visitation, inspection and sizing. See id. at 284-85.

11. The stores that purchase St. Eve camisoles do not

offer them for sale as sportswear. See id. at 105.

12. Underwear and intimate apparel are marketed year-

round. See id. at 216; Defendant's Exhibits BB, BC and BD.

13. St. Eve camisoles are sold year-round. See Tr., pp.

307-08, 345; Defendant's Exhibits BB and BC.

14. Camisoles manufactured for sportswear are marketed

primarily in conjunction with spring and summer. See Tr., p. 775.

15. Retailers offer St. Eve camisoles in the lingerie

sections of their catalogues. See id. at 74; Plaintiff's Exhibit

50, second page.

16. Retailers offer St. Eve camisoles in the lingerie

sections of their Internet websites. See Plaintiff's Exhibit 64;

Defendant's Exhibit E, p. 1.

17. The merchandise at issue herein was produced for and

exported to St. Eve International, Inc. by Clifton Apparels Ltd.,

Chittagong, Bangladesh. See Tr., p. 69.
Court No. 03-00068 Page 10

18. The Clifton Apparels Ltd. plant that manufactured St.

Eve's entries herein only produces underwear and sleepwear. See

id.

19. The manufacture of underwear and intimate apparel

requires equipment specially designed and adapted therefor. See

id. at 70, 73, 154.

20. The fabric in underwear and intimate apparel should

be soft to the touch. See id. at 126-27, 198, 728-29.

21. The fabric in underwear and intimate apparel should

be lightweight, preferably 180 grams per square meter or less. See

id. at 61-62, 347-48. Compare Plaintiff's Exhibit 89 with Plain-

tiff's Exhibit 25.

22. Underwear and intimate apparel should be stitched or

otherwise assembled in such a manner as to minimize discomfort and

visibility of its elements, e.g., straps, connections, seams, and

hems. See Tr., pp. 133, 198.

23. Four-hundred-fifty-seven dozen women's and girls'

cotton briefs and panties were entered by St. Eve International,

Inc. per No. 655-1146249-5, classified under HTSUS subheading

6108.21.0010 and subject to quota category 352. See Plaintiff's

Exhibit 87, p. 001.

24. St. Eve briefs and panties for women and girls are

sometimes referred to as boyshorts, boylegs, thongs, strings,

bikinis, bunpants, and hipsters, among other names. See Tr., pp.
Court No. 03-00068 Page 11

75, 149-50, 461, 503-03, 523; Plaintiff's Exhibit 98; Defendant's

Exhibit AQ; Complaint, Exhibit 5.

25. Such bottom pieces of underwear and intimate apparel

comprise the majority of product imported by St. Eve International,

Inc. in terms of volume and value. See Tr., pp. 53, 58.

26. To the extent such bottom pieces of underwear were

part of plaintiff's entries at bar, Customs did not dispute their

classification or order their redelivery for lack of a proper visa.

Cf. id. at 26.

27. The 500 dozen camisole tops also entered by St. Eve

International, Inc. per No. 655-1146249-5 were style no. 65132.

See, e.g., Plaintiff's Exhibit 7. See also Plaintiff's Exhibit 87.

28. That St. Eve style no. 65132 is comprised of 92

percent brushed cotton and eight percent spandex knit fabric with

an approximate material weight of 160 grams per square meter. See

Tr., pp. 347, 400.

29. That St. Eve style no. 65132 has a front scoop

neckline, straight-cut back, and an inner shelf6 bra. See Plain-

tiff's Exhibit 7; Defendant's Exhibits B, T and AT.

30. That shelf (or self) bra consists of an additional

layer of fabric wrapped inside and around the top of the camisole,

6
At trial, defendant's expert witness was of the view that
shelf is a bit of a misspelling or a misconception; self is what
she considers that element of a camisole to be. See Tr., p. 623.
Cf. id. at 726.

For purposes of this case, the court accepts either spelling
and concept based thereon.
Court No. 03-00068 Page 12

and attached only thereto, with an 11/16-inch scalloped elastic

band hemmed to its bottom, hanging loose within the shell that is

intended to be form-fitting, slightly narrower albeit flared at the

bottom. See, e.g., Plaintiff's Exhibit 7.

31. The top edge of that St. Eve style no. 65132 is

trimmed with a thin band of elastic material, has narrow, elastic

"spaghetti" straps with lingerie-style adjusters and unobtrusive

stitching and hemming typical of women's and girls' underwear and

intimate apparel. See, e.g., id. See also Tr., pp. 61, 88-89,

133, 161, 204, 296, 350.

32. That St. Eve style no. 65132 does not veil completely

a developed human female breast. Cf. id. at 629-30.

33. That St. Eve style no. 65132 was imported in three

basic colors, white, heather gray, and black, for sale to the May

Company. See id. at 309.

34. That St. Eve style no. 65132 was sold to the May

Company along with its matching bottoms, although not via entry no.

655-1146249-5. See id. at 76, 301-02.

35. The May Company has stores in 37 states. See id. at

278-79.

36. The May Company purchased St. Eve style no. 65132

only for display and sale in the women's and girls' underwear and

intimate-apparel departments of its stores, namely, Filene's

Basement, Hecht's, Robinson, and strawbridge's. See id. at 76, 86-

87, 279-81, 307, 308.
Court No. 03-00068 Page 13

37. The 344 dozen camisole tops entered by St. Eve

International, Inc. per No. 655-1151865-0 were style no. 27-0180-3.

See Plaintiff's Exhibit 88, p. 001. Compare Plaintiff's Exhibit 8

with Defendant's Exhibit D.

38. That St. Eve style no. 27-0180-3 is comprised of 95

percent brushed cotton and five percent spandex knit fabric with an

approximate material weight of 160 grams per square meter. Ibid.

39. That St. Eve style no. 27-0180-3 was sold in three

solid colors, white, ivory, and black, to Chadwick's of Boston

along with its matching bottoms, although not via entry no. 655-

1151865-0. See Tr., p. 64.

40. Chadwick's of Boston purchased St. Eve style no. 27-

0180-3 only for display and sale in the women's and girls'

underwear and intimate-apparel departments of its stores. See id.

at 74-75. See also Complaint, Exhibit 8.

41. That St. Eve style no. 27-0180-3 has an open, u-

shaped neckline decorated with one-inch see-through lace in the

front, shoulder straps approximately one and a half inches wide

that are not adjustable, and a shelf bra that consists of an

additional layer of fabric wrapped inside and around the top of the

camisole, and attached only thereto, with an elastic band hemmed to

its bottom, hanging loose within the shell that is slightly

narrower albeit flared at its bottom. Compare Plaintiff's Exhibit

8 with Defendant's Exhibit D.
Court No. 03-00068 Page 14

42. That St. Eve style no. 27-0180-5 does not veil

completely a developed human female breast. Cf. Tr., p. 658.

43. The 750 dozen camisole tops entered by St. Eve

International, Inc. per No. 655-1152655-4 were style no. 65134.

See Plaintiff's Exhibit 5 and Exhibit 90, p. 001.

44. That St. Eve style no. 65134 is comprised of 92 per-

cent brushed cotton and eight percent spandex knit fabric with an

approximate material weight of 160 grams per square meter. See

Plaintiff's Exhibit 5.

45. That St. Eve style no. 65134 material has been dyed

plum/heather in a striped pattern. See id.

46. That St. Eve style no. 65134 has a front scoop

neckline, straight-cut back, and an inner shelf bra. See id.

47. That shelf bra consists of an additional layer of

fabric wrapped inside and around the top of the camisole, and

attached only thereto, with an elastic band hemmed to its bottom,

hanging loose within the shell that is intended to be form-fitting,

slightly narrower albeit flared at its bottom. See, e.g., id.

48. The top edge of that St. Eve style no. 65134 is

trimmed with a thin band of elastic material, has narrow, elastic

"spaghetti" straps with lingerie-style adjusters and unobtrusive

stitching and hemming typical of women's and girls' underwear and

intimate apparel. See, e.g., id.

49. That St. Eve style no. 65134 was sold to the May

Company along with its matching bottoms, although not via entry no.
Court No. 03-00068 Page 15

655-1152655-4. See Plaintiff's Exhibit 90, second page; Defend-

ant's Exhibit BH, p. 2141.

50. St. Eve International, Inc. has marketed its style

nos. 65132 and 65134 as part of its Stretch Invisibles and Cami/

Boyleg promotions. See Tr., pp. 360-61; Plaintiff's Exhibits 97

and 98; Complaint, Exhibit 5.

51. The St. Eve shelfbra camisoles at issue herein do not

provide adequate support for sportswear by the average woman. Cf.

Tr., p. 661.

52. The St. Eve shelfbra camisoles at issue herein can

supplant a brassiere for the average woman. Cf. Plaintiff's Exhib-

it 13; Tr., p. 296.

B

That the government's position herein is not "substan-

tially [un]justified" within the meaning of EAJA does not necessar-

ily mean that it prevails on the merits. See, e.g., United States

v. Ziegler Bolt & Parts Co., 21 CIT 830, 971 F.Supp. 597 (1997),

and cases cited therein. At a minimum, that position must satisfy

United States v. Mead Corp., 533 U.S. 218, 221 (2001), wherein

eight justices

agree[d] that a tariff classification has no claim to
judicial deference under Chevron [U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984)],
there being no indication that Congress intended such a
ruling to carry the force of law, but [] h[e]ld that
under Skidmore v. Swift & Co., 323 U.S. 134 (1994), the
ruling is eligible to claim respect according to its
persuasiveness.
Court No. 03-00068 Page 16

(1)

Prior to the entries and Customs notices in response

thereto that underlie this case, the Service had considered similar

issues and promulgated ruling letters in New York numbered B86925

(July 11, 1997), B88682 (Sept. 4, 1997), and C81236 (Dec. 18,

1997)[Plaintiff's Exhibit 104]. The first ruling was that certain

knit, tank-styled garments were classifiable as underwear per HTSUS

6109.10.0037, whereas the other two classified the garments under

review as tank top outerwear under subheading 6109.10.0060. Pur-

suant to a request for reconsideration of those two decisions,

B88682 and C82136, Customs Headquarters affirmed all three rulings,

number B86925 because submissions established that the camisoles

were designed, marketed and sold as underwear, whereas no such

evidence had been submitted at the times of the other two rulings.

See Withdrawal of Notice of Proposed Modification[7] and Affirmation

of Ruling Letters Relating to Tariff Classification of Certain Knit

Tank-Styled Garments, 35 Cust. B. & Dec., no. 41, p. 13 (Oct. 10,

2001)[Plaintiff's Exhibit 103, p. 1]. That affirmation was based

upon reasoning which is appropriate to quote at length herein, to

wit:

The Guidelines [for the Reporting of Imported Pro-
ducts in Various Textile and Apparel Categories, CIE
13/88 (1988)] define "underwear" as . . .

garments which are ordinarily worn under other
garments and are not exposed to view when the
wearer is conventionally dressed for appear-
ance in public, indoors or out-of-doors.

7
See Plaintiff's Exhibit 100.
Court No. 03-00068 Page 17

The instant garments meet the definition of tank
tops. However, some tank tops are outerwear and some
tank tops are underwear. Customs originally stated that
the subject garments were fashionable camisole-styled
tank tops currently popular among teens and young women
as outerwear. However, based on the responses to the
Proposed Notice of Modification, it is now Customs belief
that the instant garments are not clearly outerwear.

In past rulings, Customs has pointed out that the
merchandise itself may be strong evidence of use. Citing
Mast Industries v. United States, 9 CIT 549, 552 (1985),
aff'd 7[8]6 F.2d 1144 ([Fed.Cir.] 1986), citing United
States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817
(1963). The importer suggests that the appearance and
construction features of the garments at issue, including
the "underwear weight" fabric, elasticized trim, narrow
"lingerie-type" straps and snug-fit construction are
characteristic of underwear. Customs does not agree that
such features are limited to use in underwear. The
weight and opaqueness of the fabric is appropriate for
both underwear and outerwear. The narrow adjustable
straps have become a popular feature on outerwear cami-
sole-styled tank tops. Current fashion has also embraced
snug-fitting garments as outerwear. Based on physical
examination of the garments, the tank tops are not
readily identifiable as either underwear or outerwear.
The garments are ambiguous.

When presented with a garment which is ambiguous and
not clearly recognizable as underwear or outerwear,
Customs will consider other factors such as environment
of sale, advertising and marketing, recognition in the
trade of virtually identical merchandise, and documenta-
tion incidental to the purchase and sale of the merchan-
dise, such as purchase orders, invoices, and other
internal documentation. See HQ 960866, July 15, 1999; HQ
960865, dated July 15, 1999; HQ 963442, July 7, 1999; HQ
960864, July 2, 1999; HQ 960862, dated July 2, 1999; HQ
961978, dated June 17, 1999; HQ 961185, dated June 11,
1999; HQ 960906, June 3, 1999; HQ 960926, February 25,
1999; HQ 960925, February 23, 1999; HQ 960928, February
15, 1999; HQ961116, November 20, 1998; HQ 960690,
September 25, 1998; HQ 959843, May 6, 1998; HQ961036,
April 27, 1998; HQ 960797, February 19, 1998; HQ 960442,
August 4, 1997; HQ 960391, April 22, 1997; HQ 957762,
April 28, 1995; HQ 957615, May 24, 1995; HQ 957004,
November 23, 1994; HQ 956351, July 7, 1994[;] and HQ
956350, July 5, 1994.
Court No. 03-00068 Page 18

Ariela-Alpha and its sister companies are engaged in
the production and sale of fine lingerie. The importer
submitted a copy of Alpha-Syrlay's catalogue which in-
dicates that Alpha-Syrlay exclusively sells intimate
apparel including similar camisole-styled tank tops with
matching panties. The subject garments were designed by
the Director of Designing at Ariela-Alpha, who has been
designing lingerie for over thirteen years, as undershirt
and panty sets. Performance standards showed that the
instant garments were designed to meet the washing
standards for underwear which are more rigorous than the
standards for outerwear. Although Ariela-Alpha failed to
provide specifications establishing a difference between
underwear tank tops and outerwear tank tops, in comparing
the subject garments to the outerwear camisole-styled
tank tops submitted by the importer, the subject garments
do appear to be made of a lighter weight fabric and are
cut smaller.

Each of the garments at issue is sold as a "cami and
panty set" and thus have a matching panty. Statements
from underwear buyers for Sears, K-mart, Boscov's and
Value City Department stores indicate that the garments
were purchased for sale in the intimate apparel depart-
ment as "cami and panty sets." Copies of commitment
sheets from these retailers substantiate that the
garments were exclusively purchased as underwear. It is
also clear that the garments are sold by the retailers as
underwear. Photographs from showroom floors support the
claim that the tank tops are merchandised and displayed
as underwear and sold in the lingerie department along
side other underwear garments as underwear. The importer
has also established that the intimate apparel industry
perceives the subject tank tops as underwear by
submitting statements from buyers stating that the
garments are known in the trade as underwear.

The importer has submitted several advertisements
showing the garments advertised as underwear. The
advertisements depict the "cami and panty sets" among
other lingerie articles. Customs notes that the hang
tags show the subject garments worn with the matching
panties. The importer has also provided numerous print-
outs from various websites showing similar lightweight,
slim-fitting camisole-styled tank tops advertised as
intimate apparel.

Although the manner in which an article is designed,
manufactured, and marketed is not dispositive of tariff
classification, Customs finds it to be persuasive in this
case when determining the classification of ambiguous
Court No. 03-00068 Page 19

tank tops. See Mast Industries, Inc. v. United States,
[supra] . . .; St. Eve International, Inc. v. United
States, 11 Ct. Int'l Trade 224 (1987); and Inner Se-
crets/Secretly Yours, Inc. v. United States, [19 CIT
496,] 885 F.Supp. 248 (1995).

Customs emphasizes that upon physical examination
the instant tank tops were not readily identifiable as
outerwear or underwear. Accordingly, this ruling does
not affect the classification of the majority of tank
tops which upon physical examination are clearly outer-
wear or underwear.

Several of the comments raised the concern that the
proposed modification would have resulted in all knit
cotton tank tops being classified as outerwear. There
was fear of a massive quota migration from textile cate-
gory 352 to textile category 339. However, this would
not have been the result because the proposed revocation,
like the current ruling, only covered a small number of
garments. Similarly, now that the subject tank tops are
classified as underwear, there should not be a concern of
a quota migration from textile category 339 to textile
category 352.

As with any ambiguous garment, Customs recommends
that importers submitting ruling requests involving tank
tops which are not readily recognizable as underwear or
outerwear should submit a full and complete statement of
the facts, including but not limited to design, marketing
and sales information. Customs realizes that this may
result in the same merchandise being classified dif-
ferently when imported by different companies. Despite
Customs belief that each article has only one appropriate
classification under the HTSUSA, it appears that in the
case of ambiguous underwear/outerwear tank tops, the
courts direct consideration of the manner in which the
garments are designed, marketed, sold and recognized in
the trade. If an importer can establish that an ambigu-
ous tank top is designed, marketed and sold as underwear,
the garment will be classifiable as underwear.

Id., pp. 16-18 [and fourth to sixth pages]. Indeed, the courts do

so direct such consideration. In the prior action brought by St.

Eve International, Inc., for example and which is cited in the

foregoing ruling, Customs rejected the company's classification of
Court No. 03-00068 Page 20

its cotton pajamas and other nightwear in favor of an outerwear

category that required another entry visa which was not possessed

or presented by St. Eve. Following the approach set forth in

United States v. Carborundum Co., supra, the Court of International

Trade overruled the Service's attempted exclusion of the company's

merchandise. See 11 CIT 224 passim.

Called to testify in this case was the responsible

Customs National Import Specialist8, who seemingly paid little heed

to such prior court directions and the foregoing Service head-

quarters ruling based thereon in concluding that the St. Eve goods

had to be ordered redelivered. See, e.g., Tr., pp. 457, 458, 472,

509, 511-12, 538. Rather, that determination to redeliver all of

the camisoles covered by the three different entries was based upon

his consideration of but one such garment9, and notwithstanding

testimony that "[e]ach garment stands on it own"10; [w]e classify

the garment presented to us"11; "[w]ithout looking at the garment,

8
The defendant called to the witness stand a second Bureau
officer assigned this select title, but she denied any respon-
sibility for classification of women's underwear and thus for
the decision challenged herein. See Tr., pp. 557-58, 560-61,
569-70. Hence, all references in this opinion to the National
Import Specialist are to defendant's first such, responsible
officer.
9
See Tr., pp. 437, 459, 508, 536.
10
Id. at 458.
11
Id. at 458-59.
Court No. 03-00068 Page 21

I have no opinion"12; [i]t's the total garment that's presented"13;

and he can classify an undergarment "[b]y looking at the garment as

a wh[o]le . . . Nothing else but the garment"14. Nonetheless, the

National Import Specialist testified that he considers the St. Eve

garments at issue [] indistinguishable from garments
which are used and sold as sportswear garments or active-
wear garments or yoga wear garments15

and that they present no ambiguity as to whether or not they are

underwear16 within the meaning of the Customs Service's headquarters

ruling, supra.

(2)

Clearly, the record otherwise developed in this matter

does not support this continuing view of the defense, and the court

therefore cannot and does not concur. Of course, the fundamental

ambiguity underlying this case is that one woman might wear that

which another would not dare to bear without more cover. No doubt,

some of this phenomenon has been on daily display during the

National Import Specialist's walks to work in Manhattan17, if not

also in his own home among his wife and daughters18. And retailers

12
Id. at 522.
13
Id. at 534
14
Id. at 537.
15
Id. at 506.
16
See id. at 438, 439. See also id. at 521.
17
See id. at 427-28.
18
See id. at 427.
Court No. 03-00068 Page 22

have sought to support and advance these American propensities by

placing camisoles for sale in settings not necessarily constricted

by traditional concepts of intimacy and modesty. But those set-

tings have not led the government (or anyone else connected with

this case) to locate thereat or therein a single St. Eve camisole

that has been ordered redelivered. On the contrary, the evidence

adduced shows that the trade recognizes St. Eve's camisoles to be

underwear19, all the more so given the underpants that match20 and

are marketed with them21. As for the economic practicality of so

using the imports, pricing did not develop at trial as a definitive

issue. For example, the St. Eve style no. 27-0180-3 camisole which

is at issue herein was apparently purchased by the government for

$7.99 at Marshalls22, whereas the St. Eve camisole that the defend-

ant concedes to be underwear, albeit shelf-braless, is tagged with

a manufacturer's suggested retail price of $12. See Plaintiff's

Exhibit 16; Tr., p. 533. To the extent such pricing induces sales

of the St. Eve goods to consumers, the evidence shows their

environment to be that of underwear and intimate apparel. See,

e.g., Tr., pp. 291-93; Plaintiff's Exhibits 38, 39, 49, 50, 71,

109. And, given that exclusive environment of sale, the record

developed at bar supports an expectation that the ultimate

19
See, e.g., id. at 167. Cf. id. at 58.
20
Compare, e.g., Defendant's Exhibit C with Plaintiff's
Exhibit 11. See also Defendant's Exhibit P.
21
See, e.g., Plaintiff's Exhibits 97, 98, 105.
22
See Defendant's Exhibit D.
Court No. 03-00068 Page 23

purchasers of the St. Eve goods will wear them beneath other pieces

of clothing in a manner within the well-settled definition of such

"layering"23 viz.:

undergarment Item of apparel worn under the outer gar-
ments. These garments serve many functions. They
may protect the outer clothing from being soiled or
provide a more comfortable layer between the skin
of the wearer and the outer clothing. Those gar-
ments serving this purpose are usually made from
soft, washable fabrics. Undergarments may serve to
give shape to the outer garments either through
constricting the body or providing support to the
clothing. It is not unusual for several layers of
undergarments to be worn at the same time. Al-
though generally unseen, parts of undergarments may
sometimes be a visible element of the costume.
Also called underwear.

The Fairchild Dictionary of Fashion [Plaintiff's Exhibit 78], p.

462 (3rd ed. 2003)(emphasis in original).

To be sure, defendant's witnesses testified that that

expectation of the ultimate purchasers is not ironclad. See, e.g.,

Tr. at 472 (Burtnik); id. at 555, 567 (DeGaetano); id. at 699, 703

(Holmes). See also Monget, Blurring the Lines; As Innerwear In-

creasingly Delves into Sportswear, An Industry Grapples With the

Pros and Cons of Crossover Appeal, Women's Wear Daily, Aug. 27,

2001, p. 325 [Defendant's Exhibit AW, pp. 4-7]. Nonetheless, this

fact that unveils a notable trend has not been shown to broaden the

channel of trade in which St. Eve camisoles are designed, knit,

23
Tr., pp. 96, 103, 119, 177-78, 180-82, 244-46, 297, 316,
370-72, 402, 425, 472, 512, 522, 589, 672-74, 677, 692, 768-69.
Cf. id. at 301-02, 726, 733-34.
Court No. 03-00068 Page 24

stitched together, imported, consigned, and ultimately passed on to

the public. See, e.g., Tr., pp. 70, 89, 91, 141, 300-01. That

channel has not been shown to encompass sports- and active- wear.

See, e.g., id. at 90, 310, 398. Rather, both sides have proven

that shelfbra camisoles are to be found in an other channel for

such, more-demanding dress. See id. at 153-54, 162-63, 226-27,

316, 439-40, 494, 633 and 639-41 and Defendant's Exhibit BK, 772-

74. Compare, e.g., Plaintiff's Exhibits 17 and 116 with Defend-

ant's Exhibits N, U, Q, and AS.

Defendant's witnesses also testified that they consider

shelfbra camisoles to be substantially similar in their physical

characteristics. See, e.g., Tr. at 457, 506-07 (Burtnik); id. at

574-75 (DeGaetano); id. at 625-27, 664, 689 (Holmes). The court

can concur that those presented at trial do have similarities, but

it cannot find that the St. Eve piece which has been received in

evidence as defendant's exhibit M, for example, has characteristics

substantially similar to those of plaintiff's exhibit 17. Also

compare, e.g., Plaintiff's Exhibit 7 with Defendant's Exhibit Q.

Be their physical differences as they obviously are, when

distinctions, as here, are found to exist, Customs and the courts,

as recited at length above, have resorted to consideration of the

other, multiple factors articulated in Carborundum and HQ 962021,

among other precedent. The Service's National Import Specialist
Court No. 03-00068 Page 25

did not really do so here. For him, the presence of a shelf bra in

a particular piece was the ultimate dispositive element. See Tr.,

pp. 504-05, 541. His approach has left defendant's able counsel to

attempt to impress upon this case and thus the law a class or kind

of merchandise not spelled out to date in the prodigious HTSUS, to

wit, shelfbra camisole. See, e.g., Pretrial Order, Schedule F-2

("Defendant's Statement of the Genuine Issues"):

. . . Whether the class or kind to which the subject
imports belong is necessarily a class or kind of shelf
bra camisole (or tank top), as the Government contends,
thereby permitting a finding -- either way -- that the
principal use of the class or kind is as outerwear or as
underwear.

And their proposed corollary is that the

proper path for the Court is to follow U.S. Rule of
Interpretation 1(a) and determine classification by the
principal use of the class or kind of goods to which the
subject imports belong and not the principal use of the
specific imports. Lenox Collections v. United States, 19
C.I.T. 345, 346 . . . (1995). The Court must be given a
choice of uses -- outerwear or underwear -- that applies
to the class, not to the specific imports in this action.

Post Trial Brief of Defendant, p. 3 (emphasis in original).

Neither the existing law, nor the evidence adduced herein, advances

as far as they propose. The class-or-kind competition engendered

by HTSUS heading 6109 is either "T-Shirts, singlets, tank tops and

similar garments, knitted or crocheted: Of cotton . . . Women's or

girls': Underwear (352)" on the one hand, as opposed to "Other: .

. . Tank tops: Women's (339)" under that heading or to "Of cotton

. . . Tops . . . Women's or girl's (339)" under heading 6114.
Court No. 03-00068 Page 26

Both the law and the evidence now on the record prepon-

derate in favor of plaintiff's position per subheading

6109.10.00.37, HTSUS, and this court so concludes.

III

In the final analysis, it cannot be overlooked that this

case contests redelivery (essentially exclusion) of merchandise,

which makes the matter particularly goods-specific. And, if this

in turn makes the fundamental question really whether plaintiff's

camisoles should have been excluded and thus ordered redelivered

since they definitely are not classifiable as women's or girls'

underwear, then this court certainly is not so persuaded.

The parties are hereby directed to confer and present a

proposed form of final judgment in accordance with this opinion

within 20 days of the date hereof.

So ordered.

Decided: New York, New York
May 15, 2003

________________________________
Judge