CLA-2 OT:RR:CTF:TCM H018500 GC
John B. Pellegrini, Esq.
McGuire Woods, LLP
1345 Avenue of the Americas
New York City, New York 10105-0106
RE: Tariff classification of three men’s knit or woven pants and one men’s knit pullover top; Request for administrative review of New York Ruling Letter N016398
Dear Mr. Pellegrini:
On October 12, 2007, this office received your correspondence on behalf of Bon Ton Stores, Inc. (Bon Ton), dated October 11, 2007, requesting review of New York Letter Ruling (NY) N016398, dated September 27, 2007, which pertains to the tariff classification of four garments imported by Bon Ton. The matters discussed with you during a telephone conference on December 5, 2007 were also taken under advisement. Our ruling follows.
FACTS:
NY N016398 covers four articles imported by Bon Ton, three pants and one pullover top. The garments are to be sold as coordinating separates.
Style STKPS734 is a pair of men’s pants constructed from 100% cotton, jersey knit fabric with an all-over printed design. The pants have a tunnel elastic waistband with an outside drawstring, a fly opening with a single-button closure, side seam pockets, and hemmed legs.
Style STWPS716 is a pair of men’s pants constructed from 100% cotton, yarn dyed, woven fabric. The pants have a tunnel elastic waistband with an outside drawstring, a concealed fly front opening with a single-button closure, side seam pockets, and hemmed legs.
Style 419804BT is a pair of men’s pants constructed from 100% cotton, yarn dyed, flannel woven fabric. The pants have a tunnel elastic waistband with an outside drawstring, a concealed fly front opening with a single button closure, side seam pockets, and hemmed legs.
Style 226601BT is a men’s pullover garment constructed from 100% cotton, jersey knit fabric that measures 27 stitches per two centimeters counted in the horizontal direction. It features a rib knit crew neckline, a triangular insert at the center front neckline, long hemmed sleeves, and a straight hemmed bottom with side slits.
According to the information provided, your client proposes that the subject apparel should be classified as sleepwear as opposed to multi-purpose loungewear or outerwear.
ISSUE:
What is the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) for the subject merchandise?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs 2 through 6 may then be applied in order. The 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:
* * *
6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted:
* * *
6203 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear):
* * *
If the garments are determined to be sleepwear, then they are properly classifiable in heading 6107 or 6207, HTSUS, as men’s cotton sleepwear, other than pajamas or nightshirts. These headings provide for, inter alia, men’s nightshirts, pajamas and similar articles. CBP has consistently ruled that pajamas generally are two-piece garments worn to bed for sleeping. One-piece garments are not classifiable as pajamas, but sleep shorts and sleep pants used for sleeping fall into a residual provision within the same heading. 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 being Webster’s Third New International Dictionary, which defined “nightclothes” as “garments to be worn to bed.” If it is determined that the subject merchandise does not fit the definition of “nightclothes” or sleepwear and is classifiable instead as outerwear, then the applicable headings are 6103, HTSUS (for the knit pants), 6110, HTSUS (for the knit pullover), and 6203, HTSUS (for the woven pants). Determining 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). In past rulings, CBP has stated that the most crucial factor in the classification of a garment is the garment itself. See Headquarters Letter Ruling (HQ) 966234, dated September 2, 2003; see also Mast at 552 (noting that, inter alia, “the merchandise itself may be strong evidence of use.”). Overall, CBP believes that the classification of any “loungewear” is determined by the principal use of the class or kind of merchandise to which the goods belong, the specific features of the garment at issue, and whether, when taken as a whole, the garment imparts a sense of private activity to the wearer. See International Home Textile v. United States, Slip Op. 97-31 (CIT March 18, 1997), aff’d, 153 F.3d 1378 (CAFC 1998).
In the instant case, an examination of the pullover and pants indicates that the subject merchandise is not sleepwear. With respect to the pants, the fly provides sufficient closure for multi-purpose use and does not raise modesty concerns. This is the case with both the woven pants (styles 419804BT and STWPS716), which feature a concealed one-button closure fly, and the knit pant (style STKPS734), which features an exposed one-button closure fly. Similarly, nothing about the pullover indicates a sense of privateness or private activity that is characteristic of sleepwear. Likewise, neither the pullover nor the pants fit within the definition of sleepwear articulated by the court in Mast in that there is no indication from the construction or design that their use is as bed clothes. As such, classification of the subject merchandise within headings 6107 and 6207, HTSUS, would not be appropriate.
It should be noted that Bon Ton has provided reproductions of the hang tag and waistband labels for the subject pants along with the heat seal neck label of the pullover. All three refer to the items as “sleepwear.” Moreover, Bon Ton provided photographic evidence relating to the environment of sale which indicates that the subject merchandise will be displayed in proximity to other sleepwear, dressing robes, and underwear.
When presented with a garment that is not clearly recognizable as sleepwear or outerwear, CBP will consider other factors 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, such as purchase orders, invoices, and other internal documentation. In Mast, for instance, the court determined that the garment at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. See also St. Eve International, Inc. v. United States, 11 CIT 224 (1987). Thus, when ambiguity exists about whether the garment is sleepwear or outerwear, CBP considers these factors in totality and no single factor is determinative of classification as each factor viewed alone may be flawed. See Regaliti, Inc. v. United States, 16 C.I.T. 407 (May 21, 1992). For instance, CBP has long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outerwear. See HQ 955341, dated May 12, 1994. In this case, an examination of the garments at issue does not result in any ambiguity concerning whether they are sleepwear or multi-purpose outerwear. As such, the garment itself controls the classification of the merchandise.
In arguing that the sale and marketing environment for the subject merchandise is the determinative factor in classification, you point to HQ 966345, dated February 6, 2004. In HQ 966345, CBP classified garments similar to the subject pants as multi-purpose outerwear even though they were claimed to be sleepwear. You cite the following passage as evidence that the sale and marketing environment determine the classification of the garments in this case:
Nothing about the design of the garments makes them unsuitable for use as sleepwear. However, the counter argument that nothing about the design makes them unsuitable for use as general apparel is equally true. In such circumstances, the principal use is determined by the manner in which the garments are designed, marketed and sold.
While this passage, read alone, might indicate that marketing information and environment of sale are determinative of classification, this is not the position of CBP. The basis for the conclusion that the garments at issue in HQ 966345 were outerwear was the examination of the garments themselves. HQ 966345 goes on to note that the features of the pants in that ruling (i.e. substantial one-button fly, side seam pockets, and hemmed leg bottoms) were not indicative of sleepwear. With respect to the marketing material, the ruling notes that, “while not dispositive, these labels and tags shed light on what the manufacturer views the merchandise to be and of the market the importer is trying to reach.”
In this case, like in HQ 966345, examination of the subject garments does not yield an ambiguous result. The articles are principally used as loungewear. The submitted marketing materials certainly illuminate Bon Ton’s view of the merchandise and the market that it is attempting to reach. However, the tags and labels identifying the merchandise as sleepwear, while factors to be considered, are not themselves determinative of classification, nor are they dispositive with respect to identifying the garments’ principal use. See HQ 966345. See also HQ 961190, dated November 19, 1999 (wherein garments with labels identifying the garments as sleepwear were classified as outerwear). Moreover, the fact that similar garments were marketed as loungewear in the past indicates that marketing materials and environment of sale are not inherently reliable for determining whether garments are sleepwear or loungewear. Accordingly, headings 6103, 6203 and 6110, HTSUS, are the appropriate headings for classification of the subject merchandise.
HOLDING:
By application of GRI 1, the pants of style STKPS734 are classified in heading 6103, HTSUS, as knit trousers, and are specifically provided for in subheading 6103.42.1020, HTSUSA, which provides for, inter alia, “Men’s or boys’…trousers,…,knitted or crocheted: Trousers…: Of cotton: Trousers…: Men’s.” The general column one rate of duty is 16.1 percent ad valorem.
The applicable heading for the pants of styles STWPS716 and 419804BT is heading 6203, HTSUS, which covers woven trousers. The two pants styles are specifically provided for in subheading 6203.42.4016, HTSUS, which provides for, inter alia, “Men’s or boys’… trousers…: Of cotton: Other: Other, Other: Men’s trousers…: Other.” The general column one rate of duty is 16.6 percent ad valorem.
The knit pullover (style 226601BT) is classified in heading 6110, HTSUS, as a knitted pullover, and is specifically provided for in subheading 6110.20.2069, HTSUSA, which provides for, inter alia, “…pullovers…, knitted or crocheted: Of cotton: Other, Other: Men’s or boys’: Other.” The general column one rate of duty is 16.5 percent ad valorem.
Duty rates are provided for your convenience and 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.
Merchandise classifiable in subheadings 6103.42.1020, HTSUSA, and 6203.42.4016, HTSUSA, falls within textile category 347. Merchandise classifiable in subheading 6110.20.2069, HTSUSA, falls within textile category 338. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category numbers above apply to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international
agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer to the web site of the Office of Textiles and Apparel of the Department of Commerce at www.otexa.ita.doc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division