CLA-2 OT:RR:CTF:TCM H030421 CKG
Mr. John Peterson, Esq.
Neville Peterson LLP
17 State Street, 19th Floor
New York, NY 10004
Re: Modification of NY N025623; Classification of men’s knit and woven pants
Dear Mr. Peterson,
This is in response to your letter of June 6, 2008, on behalf of your client, Target Corporation, requesting the reconsideration, in part, of New York Ruling Letter (NY) N025623, dated May 2, 2008, as it pertains to the classification of two styles of men’s sleepwear pants under the Harmonized Tariff Schedule of the United States (HTSUS).
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to modify NY N025623 was published on March 31, 10, 2010, in Volume 44, Number 14, of the Customs Bulletin. CBP received no comments in response to the notice.
FACTS:
The submitted samples are two styles of men’s cotton pants, identified as styles PID # 230316 and 230317. The classification of the additional styles subject to NY Ruling Letter N025623 is not at issue.
Style # 230316 is made of 60% cotton and 40% polyester jersey knit fabric. Style # 230317 is made of 55% cotton and 45% polyester yarn died woven fabric. Both garments feature an elasticized waistband with an outside drawstring, side seam pockets, hemmed legs, and an unsecured, 5.5 inch fly front opening with no means of closure. The subject articles are described by the importer as “sleep pants” and “sleep
bottoms” and are offered for sale as “sleepwear” in the intimate apparel section of target stores.
Style # 230316 was classified in NY N025623 under heading 6103, HTSUS, which provides for: “Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted.” Style # 230317 was classified under heading 6203, HTSUS, which provides for “Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear).”
Additional marketing information submitted with the request for reconsideration indicates that the subject styles are characterized as sleepwear and sold in the intimate apparel department of Target stores.
ISSUE:
Whether the instant merchandise is classifiable as sleepwear of headings 6107 and 6207, HTSUS, or as trousers of headings 6103 and 6203, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, applied in sequential order.
The HTSUSA provisions at issue are as follows:
6103: Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted
6103.42: Of cotton:
6103.42.10: Trousers, breeches and shorts
Trousers and breeches:
6103.42.1020: Men’s (347)
* * * * * *
6107: Men's or boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted
Other:
6107.91.00: Of cotton
6107.91.0030: Sleepwear (351)
* * * * * *
6203: Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear)
Trousers, bib and brace overalls, breeches and shorts
6203.42: Of cotton
6203.42.40: Other
6203.42.4016: Other (347)
* * * * * *
6207: Men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles
Other:
6207.91: Of cotton:
6207.91.30: Other
6207.91.3010: Sleepwear (351)
* * * * * *
You propose classification in heading 6107, HTSUS, which provides for “Men's or boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted” and heading 6207, HTSUS, which provides for “Men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles.”
The determination of whether garments are classified as sleepwear or multi-purpose apparel is controlled by the principal use of the garments. A tariff classification
controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise. Additional U.S. Rule of Interpretation 1(a).
Several court cases have also addressed the classification of sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 1986), the Court of International Trade considered the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster’s Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed." In Mast, the court determined that the woman’s nightshirt at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled that the subject nightgowns were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear.
Finally, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of whether women’s boxer style shorts were classifiable as "outerwear" under heading 6204, HTSUS, or as "underwear" under heading 6208, HTSUS. The court stated the following, in pertinent part:
[P]laintiff’s preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff’s garments are merchandised sheds light on what the industry perceives the merchandise to be.
Further, evidence was provided that plaintiff’s merchandise is marketed as underwear. While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach.
On the other hand, in International Home Textile, Inc. v. United States, 21
CIT 280, 282 (1997), aff’d 153 F.3d 1378 (CAFC, 1998), the court classified the men’s top, pants and shorts at issue as loungewear in heading 6103, HTSUS. The court therein stated:
Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court finds no basis in the exhibits, the witness testimony, or the loungewear’s construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn at informal social occasions in and around the home, and for other individual, non private activities in and around the house e.g., watching movies at home with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work…
When ruling on similar merchandise in the past, CBP’s policy has been to carefully examine the physical characteristics of the garments in question. When this has not proven substantially helpful, we consider other extrinsic evidence such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, i.e., purchase orders, invoices, and other internal documentation. It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each factor viewed alone may be flawed. See HQ 964513, dated February 11, 2002.
In the instant case, the physical characteristics of the subject styles are suggestive of sleepwear, such as the lightweight and loose construction characteristic of sleepwear, an elasticized waistband with an outside drawstring, and an unsecured fly front opening with no means of closure. While the New York Ruling at issue found that the short fly opening did not compromise modesty or privacy, we disagree. The unsecured, 5.5 inch open fly clearly indicates the intended use of the garment to be that of nightwear, and would not normally be considered appropriate for informal social gatherings. We have reached this same conclusion in prior rulings on similar merchandise. For instance, in HQ 962703, dated November 2, 2000, we stated: “An open fly is a feature whose essential character is privateness or private activity, which is indicative of sleepwear and pajamas. An unsecured fly does not satisfy the conventional standards of modesty necessary on a garment that would be worn for the type of non-private activities named in International Home Textiles, Inc.” Furthermore, in HQ 963906, dated April 4, 2001, we noted that a pair of men’s pants possessing a fly opening secured by a one-button closure did not provide the appropriate privacy for individual, non private activities in and around the house. Both the button and the button hole in this case were very close to the outside edge of the fly, allowing for “very little overlapping of the fabric around the opening, resulting in the fly front gaping open when the garment is worn.” See HQ 963906. Other rulings classifying similar garments as sleepwear include HQ 966345, dated February 6, 2004; NY L81656, dated February 3, 2005; and NY N023207, dated February 27, 2008.
The subject pants also feature two side-seam pockets. NY N025623 noted the “deep and/or excessive pockets” as characteristic of multi-use garments. However, we have held previously that such a feature “will not preclude a garment from being classified as sleepwear inasmuch as these pockets do not interfere with the garment’s practical use for sleeping.” See HQ 963906, dated April 4, 2001. The physical characteristics of the subject garments are thus consistent with sleepwear. We also find that the environment of sale supports classification as sleepwear. The marketing material which was submitted describes the items as “sleep pants,” “sleep bottoms,” and “pajama pants”. The subject articles are offered for sale as “sleepwear” in the intimate apparel section of Target stores, with other nightwear such as pajamas. The environment of sale thus indicates that both of these garments are being presented as sleepwear for the primary purpose of wearing to bed for sleeping. Nothing else in the environment of sale suggests the garments are designed or intended for wear other than while sleeping.
It is thus the opinion of this office, based on the physical characteristics of the garments in question and the general environment of sale that the subject articles are designed, marketed and used as sleepwear.
HOLDING:
Pursuant to GRI 1, the instant merchandise is properly classifiable as men’s sleepwear. Style PID # 230316 is classified under the provision for “Men's or boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton”, in subheading 6107.91.0030, HTSUSA, and is dutiable under the general column one rate of 8.7 percent ad valorem. Style PID # 230317 is classified under subheading 6207.91.3010, HTSUSA, which provides for “Men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Sleepwear,” dutiable under the general column one rate of 6.1 percent ad valorem. The textile quota category for both garments is 351.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N025623, dated May 2, 2008, is hereby modified.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division