CLA-2 OT: RR: CTF: TCM H140735 RES
Harold Grunfeld
David Murphy
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
399 Park Avenue, 25th Floor New York, NY 10022-4877
RE: Revocation of NY N071298; classification of knit polyester pants from Thailand
Dear Messrs. Grunfeld and Murphy:
This is in reference to New York Ruling Letter (“NY”) N071298, issued to you, on behalf of your client, Outerstuff, Ltd., on August 10, 2009. In NY N071298, U.S. Customs and Border Protection (“CBP”) classified boys’ pants (“pants”) under heading 6103, Harmonized Tariff Schedule of the United States (“HTSUS”). CBP has reviewed that ruling and determined that it is incorrect.
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 of the proposed action was published on August 19, 2015, in Volume 49, Number 33, of the Customs Bulletin. CBP did not receive any comments during the notice period.
FACTS:
In NY N071298, CBP described the merchandise as follows:
The sample, which you describe as sleep bottoms, is a pair of boy’s lounge pants constructed from knit polyester, piece dyed, brushed fabric. You state that the article is made from flame retardant fabric and that it is designed for use as sleepwear. The pull-on style pants have a fabric covered elastic waistband, side entry pockets and hemmed cuffs. The pants have a random, all-over Ohio State Buckeyes™ print design. The sample is a boys’ size large, 14/16. . . . The item belongs to a class of apparel that is multi-purpose in nature and is designed for wear in a variety of informal situations in and around the home.
In NY N071298, CBP classified the merchandise as loungewear under subheading 6103.43.1540, HTSUS, which provides for “[m]en’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: [t]rousers, bib and brace overalls, breeches and shorts: [o]f synthetic fibers: [t]rousers, breeches and shorts: [o]ther: [t]rousers and breeches: [b]oys’: [o]ther.”
The importer filed a request for reconsideration of NY N071298 on December 16, 2010, asserting that the proper classification of the pants at issue is as unisex sleepwear under heading 6108, HTSUS, which provides for “[w]omen’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.” Although in your request for reconsideration you discuss men’s and boys’ pajama sets, as well as pants, as NY N071298 addressed only pants, this reconsideration is limited to the pants.
ISSUES:
Whether the subject merchandise is classified as loungewear, or as sleepwear.
If the merchandise is classified as sleepwear, whether the subject merchandise is classified under heading 6107, HTSUS, as boy’s sleepwear or under heading 6108, HTSUS, as unisex 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 Harmonized System 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 2015 HTSUS headings under consideration in this case 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:
6107 Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, 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 a request for reconsideration of the ruling, the importer asserts that the merchandise in NY N071298 is unisex sleepwear and not boys’ sleepwear. NY N071298 did not address whether or not the subject merchandise should be classified as unisex and not as a boys’ article of apparel. We will analyze the two issues separately below.
Sleepwear versus Loungewear
In the determination of whether garments are classified as sleepwear, CBP considers factors discussed in several decisions by the United States Court of International Trade. In Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F. 2d 1144 (Fed. Cir. 1986), the Court 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 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, dated 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, dated 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). 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, dated Feb. 11, 2002. Where the physical attributes of the garment do not lend support to the claim that the garment is sleepwear neither advertising nor marketing alone will be considered conclusive enough to substantiate classification for tariff purposes. See HQ 955341, dated May 12, 1994.
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, dated 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). Sleepwear is 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 pants at issue 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 some of the characteristics that are features typically found on sleepwear, such as elasticized waistband, loose fit, brushed polyester fabric for softness, and motifs printed randomly all over the pants. See HQ H030421, dated May 10, 2010; HQ H040736, dated October 26, 2009; HQ 956663, dated November 30, 1994. Other characteristics of the sample are features which have been found on both sleepwear and loungewear, such as side seam pockets and a lack of a fly. Side seam pockets will not preclude a garment from being classified as sleepwear in as much as these pockets do not interfere with a garment’s practical use for sleeping. See HQ H030421; HQ 963906, dated April 4, 2001. A lack of a fly is normally suggestive of modesty, which is a feature useful for loungewear. However, there is no requirement for boy’s sleepwear pants to have some type of fly feature. In addition, there are no buttons, zippers, belt loops, pleats, or insets on the pants or any other useful design features one would associate with loungewear worn at informal social gatherings. Finally, the pants have a hangtag sewn into them that says “flame-retardant sleepwear.” The labeling of the pants with hangtags that have the words “sleepwear” is highly suggestive that the pants are sleepwear. Overall, the physical characteristics of the pants are consistent with sleepwear.
The extrinsic evidence submitted includes: purchase orders describing the merchandise as “100% polyester knit sleepwear,” invoices describing the merchandise as “boys 100 percent polyester knit sleepwear,” and excerpts of the importer’s sales catalogues listing similar tops with pants sets as “pyjama sets” under the “sleepwear” section. Lastly, the importer provided information highlighting the fact that the company that makes the instant pants is primarily a sleepwear manufacturer. Noting that internal company documents, such as invoices can be viewed as self-serving, Regali v. United States, 16 C.I.T. 407 (1992), 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 notes the consistency in the labeling of the knit pants as pajamas or sleepwear through the supply chain, e.g., the purchase orders (sleepwear), invoices (pyjamas pants), the knit pants themselves (flame-retardant sleepwear hangtag), and the fact that the manufacturer primarily makes sleepwear. Thus, the extrinsic evidence does not contradict the analysis of the physical characteristics but is consistent with the conclusion that the instant pants are sleepwear and not loungewear.
Collectively, in consideration of the totality of factors, the extrinsic evidence coupled with an examination of the physical characteristics of the sample support finding that the instant pants should be classified as sleepwear and not loungewear. This finding is in accord with that in HQ H040736, dated October 26, 2009, wherein similar merchandise stylized for girls was classified as girls’ pajamas in heading 6108, HTSUS.
Unisex versus Boys’ Wear
General Note (“GN”) 9 to Chapter 61 states in relevant part that “[g]arments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments.”
In determining whether garments are identifiable as men’s or boys’ or as women’s or girls’, CBP considers the following factors: (1) sizing, (2) construction, (3) styling, and (4) other factors such as packaging, labeling, etc. See Headquarters Ruling (“HQ”) 952241, dated October 25, 1992, (citing Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories (“Textile Guidelines”), 53 Fed. Reg. 52564 (Dec. 28, 1988)). Other factors may be considered and any factor may be determinative by itself or in combination with one or more factors. Id. Other factors to consider include examining how an article is marketed and advertised. See St. Eve International, Inc. v. United States, supra (determining the classification of a garment based on an analysis of how it was advertised, marketed, and on an examination of the garment itself); Mast Industries, Inc. v. United States, supra (classifying a garment based on an analysis of an examination of the garment, witness testimony, and marketing and advertising materials). See also HQ 967185, supra (stating that CBP’s policy is to carefully examine the physical characteristics of the garments in question and when that is not substantially helpful, to also consider other extrinsic evidence, such as marketing materials, packaging, labeling, and invoices associated with the article). Thus, these factors are analyzed below in turn.
(1) Sizing: According to the importer’s memo and the purchase orders, the sleep pants come in sizes 8 - 20. The sample provided is a size large (14/16). In general, girls’ clothing sizes are 7 – 16, and boys’ clothing sizes are 8-20. http://pages.ebay.com/buy/guides/apparel-accessories-buying-guide/sizingcharts/ ; http://www.sizeguide.net/size-guide-children-size-chart.html Thus, because the size scale of the pants is consistent with boys’ sizes, the factor of sizing weighs in favor of finding that the pants at issue are a boys’ article of clothing and not unisex wear.
(2) Construction: The sleep pants at issue are composed of a 100% knit polyester flame-retardant fabric, which upon visual and tactile inspection has a light weight and slightly medium thickness of fabric. Although the importer does not explain what aspects of the construction of the pants are unisex features versus boys’ or girls’ features, CBP observes that there is nothing about the construction of the pants that would place it in either the boys’ or girls’ category of clothing. Instead, the construction of the pants is neutral in regards to gender categorization. Therefore, because the factor of construction does not favor placing the garment in one gender category over the other, this factor supports a finding that the instant pants are of a unisex construction.
(3) Styling: In regard to the design of the sleep pants, the sample provided is red with motifs of the Ohio State Buckeyes team logo randomly scattered all over the pants. Other similar boys’ sleep pants of the importer come in the team colors and randomly scattered team logo motifs of the respective college sports team the pants are representing in the same style as that of the sample. The importer has not provided any information as to whether clothing that has sport team logos printed is traditionally marketed toward boys or to both sexes equally. A comparison of the styles of boys’ versus girls’ garments sold as sleepwear in the stores the importer listed as customers—Wal-mart, JC Penney, and Kohl’s—shows that girls’ sleep pants in general tend to come in light colors, such as various shades of pinks, blues, greens, purples, etc., with characters on them such as Hello Kitty, princesses, etc., or designs such as hearts or flowers. Boys’ styles of pants in these stores tended to come in dark and bold colors such as navy blue, black, red, and have on the pants cartoon characters such as dogs, cars, dinosaurs, and Sponge Bob™, or designs such as camouflage, plaids, sports motifs, etc. In addition, none of these retailers’ online stores carried the college sport team boys’ sleep pants. Kohl’s was the only retailer that sold other licensed sports apparel, such as t-shirts, hats, and jerseys, and these garments were listed in boys’ sizes and not girls’ sizes. Overall, the style of the instant sleep pants is more similar to colors and designs marketed to boys than to girls. Therefore, the style factor weighs in favor of finding that the sleep pants at issue here are intended to be used as a boys’ garment.
(4) Other factors: Other factors include things such as how an article is marketed, advertised, and labeled. The importer’s invoices and purchase orders, Exhibits E and G, respectively, in the importer’s memorandum, list the pants at issue as either “boys 100 percent polyester knit sleepwear” or “boy’s 100% polyester knit sleepwear.” In a catalogue excerpt titled NFL Sleepwear, Exhibit B, there is a page with the label of “Boys FR Sleeper” that has pajamas with NFL team logos for the New England Patriots printed randomly all over a pair of pants and a second page with “unisex” on the top of it that has pajama sets that also has the Patriot NFL team logos printed randomly all over both the pants and matching top of the pajama set. In another catalogue excerpt with the title of MLB Sleepwear, Exhibit C, there is a page with the label of “Boys FR Sleeper” that has pajamas with MLB team logos for the Boston Red Sox printed randomly all over a pair of pants and a second page with “unisex” on the top of it that has pajama sets that also have the Boston Red Sox team logos printed randomly all over both the pants and matching top of the pajama set.
Although the importer did not include a catalogue for the type of pants at issue—garments with college team logos—one can deduce from the excerpts of the professional sports related sleepwear catalogues that there is an inconsistency on how the importer advertises similar garments to retailers in regard to being unisex versus boys’ wear. There is no explanation provided as to why seemingly similar styled pants are labeled differently. Even though the importer’s catalogues for the professional sports related garments are inconsistent in how they market similar styled pants, the fact that similar pants are considered boys’ wear coupled with the importer’s internal documentation demonstrating that the importer and manufacturer view the pants at issue as boys’ garments, all weigh in favor of a finding that the pants at issue are boys’ wear and not unisex wear.
Overall, an analysis of the factors provided in the Textile Guidelines and used in HQ 952241—the sizing, construction, styling, advertising and marketing of the garment—demonstrate that the instant pants are intended to be used by boys and, hence, are identifiable as boys’ garments. Therefore, the pants at issue are not classifiable as a unisex garment in heading 6108, HTSUS.
Therefore, the instant pants are properly classified as boys’ sleepwear in heading 6107, HTSUS, as [m]en’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted.”
HOLDING:
Pursuant to GRI 1, the instant pants are classified under subheading 6107.99.1030, HTSUSA, which provides for “[m]en’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: [o]ther: [o]f other textile materials: [o]f man-made fibers: [s]leepwear.” The general, column one, rate of duty is 14.9 percent, ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
.
EFFECTS ON OTHER RULINGS:
NY N071298, dated August 10, 2009, is hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division