CLA-2 OT: RR: CTF: TCM H003893 RES
Anita Terry-McDonald
Port Director
U.S. Customs and Border Protection
4341 International Parkway, Suite 600
Atlanta, Georgia 30354
RE: Request for Internal Advice; Tariff classification of ladies’ cotton knit pants; Sleepwear vs. Loungewear.
Dear Ms. Terry-McDonald:
On November 16, 2006, you requested internal advice with regard to the tariff classification of ladies’ cotton knit pants under the Harmonized Tariff Schedule of the United States (HTSUS). Your request was initiated by a submission dated October 17, 2006, on behalf of Burlen Corporation. This letter responds to your request.
FACTS:
Burlen Corporation (“Burlen”) imported ladies’ cotton knit pants (style #FM-61A701) into the U.S. on August 27, 2006. The commercial invoice, the bill of lading, the packing list, and the country of origin certificate described the imported goods as “pyjama pants”. Burlen classified the ladies’ cotton knit pants as sleepwear under 6108.91.00 of the HTSUS on the entry summary.
The Port of Atlanta did not agree with Burlen’s classification of the ladies’ cotton knit pants stating the reasons of the ambiguous styling and the lack of labels identifying them as sleepwear. On September 1, 2006, the Port of Atlanta issued a redelivery notice. The redelivery notice stated that the Port of Atlanta considered the garments to be loungewear and subject to visa category 348. Burlen failed to either provide a category 348 visa for the garments or to redeliver them to the Port of Atlanta within 30 days.
Burlen requested that the Port of Atlanta seek internal advice from CBP Headquarters regarding the proper classification of the knit pants. The sample of the knit pants that Burlen forwarded to U.S. Customs and Border Protection (CBP) with the request for internal advice is a pair of pink 100% cotton knit pants with multi-colored polka dots. The pull-on pants feature bell bottoms with lettuce leaf leg openings finished with overlock stitching and an elasticized waistband with a satin drawstring. Both the pants label and the attached hangtag state “eyeshadow sleepwear”.
ISSUE:
Whether the subject merchandise is classified under heading 6104, HTSUS, as loungewear, or under heading 6108, HTSUS, as sleepwear.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI 2 through 6 may be applied in order.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The 2006 HTSUS headings under consideration in this case are as follows:
6104 Women’s or girls’ suits, ensembles, suit-types jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted:
6108 Women’s or girls’ slips, petticoats, briefs, panties, night-dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
In the classification of garments submitted to be sleepwear, CBP considers factors discussed in several decisions by the Court of International Trade. In Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F. 2d 144 (Fed. Cir. 1986), the Court of International Trade cited several lexicographic sources, among them Webster’s Third New International Dictionary which defined “nightclothes” as “garments to be worn to bed.” Based on an examination of the garment, witness testimony, and other evidence concerning how it was marketed and advertised, the court determined that the garment at issue was designed, manufactured, and used as nightwear and, therefore, was classifiable as nightwear. Id. at 500-51. Likewise, in St. Eve International, Inc. v. United States, 11 C.I.T. 224 (1987), the court ruled that the garments at issue in that case were manufactured, marketed and advertised as nightwear and were chiefly used as such. The court in St. Eve based its conclusion on an analysis of how the garment was advertised and marketed and on an examination of the garment itself. Similarly, in Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-06 (1995), based upon an examination of the merchandise at issue, witness testimony, and documentary evidence such as marketing and advertising materials, the court determined that the subject merchandise was classifiable as underwear and not outerwear.
Thus, the determination of the classification of an imported garment requires an analysis of the physical characteristics of the article and, if the article is ambiguous in design and not clearly recognizable, of the extrinsic evidence, such as marketing materials and invoices associated with the article. See HQ 967185 (Oct. 8, 2004) (stating that CBP’s policy is to carefully examine the physical characteristics of the garments in question and in some cases to consider other extrinsic evidence); HQ 962021 (Sept. 19, 2001) (stating that for a garment not clearly recognizable as underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc). See also Inner Secrets, 19 C.I.T. at 505-06. Factors to be considered include: the general physical characteristics of the merchandise, the expectations of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of the sale and the manner in which the merchandise is advertised and displayed, the use in the same manner as merchandise which defines the class, the recognition in the trade of this use, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. See St. Eve International, Inc. v. United States, 27 C.I.T. 758, 761-62, 767-68, 772 (2003); Inner Secrets, 19 C.I.T. at 503. CBP considers these factors in totality and no single factor is determinative of classification as each viewed alone may be flawed. See HQ 967185; HQ 964513 (Feb. 11, 2002).
In classification of garments, evidence may be the merchandise itself. CBP has adopted that view as the crucial factor in the classification of a garment. Mask Industries, 9 C.I.T. at 552, (citing United States v. Bruce Duncan Co., 50 C.C.P.A. 43, 46 (1963)). See also HQ 966234 (Sept. 2, 2003). Night clothes and sleepwear are characterized by a sense of privateness or private activity such as sleeping. See International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff’d 153 F.3d 1378 (Fed. Cir. 1998). Meaning they are worn in private situations such as in one’s home while alone or in the company of only intimate friends and close family. On the other hand, loungewear is “worn at informal social activities in and around the home, and for other individual, non-private activities in and around the house.” Id. Examples of activities where loungewear is appropriate are “watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance, washing the car, walking the dog, and the like.” Id. In essence, loungewear would be an article of clothing that lacks the sense of privateness such that a reasonable person would deem it appropriate to wear it in front of people other than close family or intimate friends. Thus, in consideration of the physical characteristics, the threshold question in the instant case is whether the ladies cotton knit pants are appropriate to wear in informal social activities, such as in the examples enumerated by the court in International Home, or do they share the essential character of privateness or private activity.
The sample provided has a label sewn into the pants, and a hangtag, both of which read “eyeshadow sleepwear.” It is acknowledged that the initial sample provided to the Port did not have any labels or hangtags, although, there is no explanation provided from the importer as to why this is. However, Burlen has submitted the special instructions on the production order to the manufacturer, which instructed the manufacturer to sew in the eyeshadow label, care label, and attach the hangtag, which supports the conclusion that the labels and hangtags are supposed to be attached to the knit pants during production. Regardless, the labeling of the knit pants with labels and hangtags that have the words “sleepwear”, when sold at retail stores provides support to the premise that the knit pants are advertised and marketed as sleepwear and not loungewear.
The sample pants are a light pink with quarter inch diameter dots all over the pants. The dots are a mixture of colors of green, hot pink, dark violet, light violet, and turquoise. Burlen provided a marketing brochure labeled “Romantic Coordinates”, which according to Burlen’s counsel depicts the style line of mix and match pajama knit pants, tank-tops, long-sleeve t-shirts, cotton spandex hipsters (underwear), bras, sleeping masks, and fleece robes. This brochure has pictures of the cotton knit pants at issue here and the other articles of clothing in the style line. The other styles of knit pants in the brochure are either a white or darker pink color with little pink hearts or what appears to be the words “heart breaker” written in a small pink colored script all over the pants. The material has a felt-like softness and the colored dots do not diminish or alter this texture. The weight of the pants, 180 grams a square meter, and the softness of the material are characteristically appropriate for sleepwear. See St. Eve International, 27 C.I.T. at 763 (stating that fabric in underwear and intimate apparel should be soft to the touch, light weight, and preferably weighing 180 grams per square meter or less). Cf. HQ 967185 (finding that the screen printing on a woman’s knit top made the garment less soft and less comfortable for sleeping). There are no buttons, zippers, pockets, belt loops, pleats, or insets on the pants or any other useful design features one would associate with loungewear worn at informal social gatherings. The pants are held up with an enclosed turquoise silk drawstring, that a wearer could tie so that the pants do not fall down. A drawstring is typically found on sleepwear. Finally, the pants have a lettuce-edged hem on the leg opening, which according to Burlen is usually found on sleepwear.
In analyzing the physical characteristics of the knit pants, the question is whether a woman wearing the pants would wear them in private or at informal social events in and around the house in front of people other than close family or intimate friends. Although not as sheer or revealing as something made of a more diaphanous material or satin, the sample pants are not completely opaque on the same level as, for example, sweat pants. The sample pants are constructed of thin cotton knit material that would reveal underwear that was darker than white or skin color and the material has a certain clinginess to it that would reveal outlines of underwear and provide a somewhat revealing outline of the pelvic area if no undergarments were worn. The material is thin enough that a background light source, such as with standing outside on a sunny day, would reveal more of a woman’s silhouette than would reasonably be appropriate or comfortable for an informal social setting in the company of acquaintances, strangers, or non-intimate friends.
Thus an analysis of the physical characteristics of the garment—the type of fabric, the weight of the material, the style, the feel of the material, and the design of the article, and whether these combined characteristics make the pants appropriate for informal social settings—support finding that the merchandise is designed and marketed as sleepwear and not loungewear.
In regard to the extrinsic evidence, a listing of evidence submitted includes: an April 18, 2006, production order, with the retailer Fred Meyer listed as the customer for knit pants, describes the merchandise as “sleepwear pant”; a document from Fred Meyer describing department 21, the department listed as ordering the knit pants, as selling intimate apparel type clothing; various 2006 July through August, shipping invoices, certificate of origins, bill of ladings, etc., which label the knit pants as “pyjama pants”; and a brochure from Burlen with pictures of it’s Eyeshadow Romantic Coordinates style line of clothing, which include the knit pants at issue.
Noting that internal company documents, such as invoices can be viewed as self-serving, Regali v. United States, 16 C.I.T. 407 (1992), and that the importer failed to provided any specific statements from Fred Meyer about the environment of sale, manner in which the knit pants are advertised and marketed or any other information on how the ultimate purchaser views the merchandise, CBP is of the opinion that this extrinsic evidence alone would not substantiate the importer’s claim for classifying the knit pants as sleepwear. However, CBP does not completely disregard this evidence because there is a consistency in the labeling of the knit pants as pajamas or sleepwear through the supply chain, e.g., retailer’s ordering department (intimate apparel), the purchase orders (sleepwear), invoices (pyjamas pants), and the knit pants themselves (eyeshadow sleepwear label and hangtag). Thus, the extrinsic evidence does not contradict the analysis of the physical characteristics but is consistent with the conclusion that the knit pants are sleepwear and not loungewear.
Therefore, taken together, the extrinsic evidence coupled with an examination of the physical characteristics of the sample support finding that the knit pants should be classified as sleepwear and not loungewear.
HOLDING:
The ladies’ cotton knit pants are classified under subheading 6108.91.0030, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night-dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of Cotton: Other: Women’s.” They are subject to an 8.5% rate of duty and visa category 350.
The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, we suggest your client check the Textile Status Report for Absolute Quotas at www.cbp.gov close to the time of shipment to obtain the most current information available.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division