CLA-2 OT:RR:CTF:TCM H174863 RES
Port Director
U.S. Customs and Border Protection
Service Port-Champlain
237 West Service Road
Champlain, NY 12919
ATTN: Tammy Gonyo, Import Specialist
RE: Application for Further Review of Protest No. 0712-11-100168; Tariff classification of boys 100% polyester pants imported from Cambodia.
Dear Port Director:
This letter is in reply to the Application for Further Review (“AFR”) of Protest No. 0712-11-100168 filed May 4, 2011, on behalf of JV Apparel Corp. (“JV Apparel”/”Protestant”). The Protest is against U.S. Customs and Border Protection’s (“CBP”) classification of boys’ 100% polyester pants under heading 6103, Harmonized Tariff Schedule of the United States (“HTSUS”), as boys’ loungewear.
FACTS:
The articles at issue here are described on the Customs Protest and Summons Information Report form as “boys 100% polyester pants/loungewear” (“flannel/polyester pants”). The importer did not provide a physical sample but provided pictures of the flannel pants. An examination of the pants in the pictures reveals that they are constructed of lightweight polyester fabric with a loose and roomy design. The pants have a covered elastic waistband with a functional drawstring that ties on the outside and hemmed leg openings. The flannel pants do not appear to have a fly or pockets. The flannel pants come in different colors and different styles that have whimsical patterns on them including, balls, skulls, plaid, cartoon characters and objects, and helicopters.
The instant AFR involves one entry dated September 20, 2010. The articles were entered under subheading 6103.43.1540, HTSUSA, as “[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.” The pants were liquidated on November 5, 2010, under the same subheading as entered. JV Apparel filed its protest and AFR on May 4, 2011.
JV Apparel asserts that the proper classification of the boys’ polyester pants is under heading 6107, HTSUS, which provides for “[m]en’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted.”
ISSUE:
Whether the subject merchandise is classified under heading 6103, HTSUS, as knit pants, or under heading 6107, HTSUS, as sleepwear?
LAW AND ANALYSIS:
As a preliminary matter, CBP notes that the protest was timely filed on May 4, 2011, which is within 180 days after the earliest liquidation date of November 5, 2010. See 19 U.S.C. § 1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2).
Further Review of Protest No. 0712-11-100168 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the Protestant alleges that CBP’s classification of the pants is inconsistent with CBP rulings, which concern the same or substantially similar merchandise, namely: Headquarters Ruling Letter (“HQ”) 960848, dated September 14, 1998, and NY N004603, dated December 22, 2006.
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 of the Harmonized Commodity Description and Coding System (ENs), 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 2010 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:
Heading 6107, which covers a variety of men’s and boys’ garments that are commonly referred to as “sleepwear”, is a use provision. See International Home Textiles, Inc. v. United States, 25 C.I.T. 980, 983 (2001) (finding that heading 6107, HTSUS, is a use provision); International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff’d 153 F.3d 1378 (Fed. Cir. 1998). Additional U.S. Rule of Interpretation (“USARI”) 1(a) of the HTSUS states in relevant part that, "[i]n the absence of special language or context which otherwise requires — (a) 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.” Primal Lite, Inc. v. United States, 182 F.3d 1362, 1363-64 (Fed. Cir. 1999).
The courts have established that garments principally used as sleepwear are “characterized by a sense of privateness . . . or private activity.” International Home, 21 C.I.T. at 282; International Home, 25 C.I.T. at 983-85. Moreover, they have repeatedly distinguished sleepwear from “loungewear” on the grounds that garments principally used as loungewear are “worn at informal social activities in and around the home, and for other individual, non-private activities in and around the house”, such as “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. Therefore, if the pants at issue here are determined to be sleepwear, they are classifiable under heading 6107, HTSUS. If, on the other hand, the pants are found to be loungewear, they are classifiable under heading 6103, HTSUS, as boys’ trousers.
The determination of whether garments are classified as sleepwear or loungewear (also referred to as multi-purpose apparel) is controlled first by examination of the physical characteristics of a garment. See Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F. 2d 144 (Fed. Cir. 1986) (noting that “merchandise itself may be strong evidence of use.”). See also International Home, 25 C.I.T. at 985-86; St. Eve International, Inc. v. United States, 27 C.I.T. 758, 767-69, 772 (2003). However, if a garment is ambiguous in design and not clearly recognizable as sleepwear or loungewear, the courts direct consideration of other factors, which include: the environment of sale (such as advertising, marketing, and the expectations of the ultimate purchaser); recognition in the trade of use of virtually identical merchandise; and other extrinsic evidence such as documentation incidental to the purchase and sale of the merchandise, i.e., purchase orders, invoices, and other internal documentation. St. Eve, 27 C.I.T. at 761, 768-70. See United States v. Carborundum Co., 63 C.C.P.A. 98, 102 (1976); St. Eve International, Inc. v. United States, 11 C.I.T. 224, 226 (1987); Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-06 (1995); International Home, 25 C.I.T. at 985-88. See also HQ 962021, HQ 967185, and October 8, 2004. CBP considers the totality of those factors and no single factor is determinative of an article’s classification. See HQ 964513, dated February 11, 2002; HQ H018500, dated February 8, 2008; HQ H003893, dated March 11, 2010; HQ H030421, May 10, 2010. These factors are analyzed below.
Physical Characteristics
The importer did not provide a physical sample of the articles. Rather, the articles are depicted in pictures in the JV Apparel catalogue and pictures submitted with the Protest by the Port. An inspection of the pictures of flannel pants reveals that they have a covered elastic waistband, a functional drawstring on the outside of the waist, hemmed leg openings, no fly, no pockets, various colors, and whimsical designs and patterns, and the tags on the pants state they are 100% polyester. Although, there is nothing about the physical characteristics of the pants than unequivocally puts them in either the loungewear or sleepwear category, the puerile quality of the design appearance of these flannel pants favors finding that they are something to be worn only in the company of close friends and family and not in informal social events with acquaintances and strangers. However, we will also consider the extrinsic factors articulated by the courts
Environment of Sale (including advertising, marketing, and expectations of the ultimate purchaser)
JV Apparel provided in their memorandum a copy of their 2011 spring and summer catalogues for sleepwear that describes the flannel pants at issue as “polyester sleep pants.” Also, the flannel pants have hangtags attached directly to them that have the words “flame resistant sleepwear” and some of the pants have an additional packaging label that says “2 Pack Lounge Pants.”
JV Apparel has a website at www.jellifishkids.com (last visited Dec. 15, 2011); however, the message on the site states “website coming soon.” Anything written on JV Apparel’s website is of little probative value because it does not provide any substantive information on JV Apparel’s product lines besides mentioning that Jelli Fish Kids makes PJs.
JV Apparel claims that its flannel pants are sold as intimate apparel in its buyers’ U.S. stores with other nightwear, however, the importer did not enumerate in their memorandum which specific retailers sell and market its flannel pants at issue here. The retailers “Boscovs” and “The Bay” are listed as buyers on a packing list attached to JV Apparel’s memorandum. Boscovs has flannel pants with the skull and helicopter patterns listed under the “active shorts/pants” section of their website although there is no indication on the Boscovs website who manufactures these pants. Under the sleepwear section on the Boscovs website, there are top and pants sets, where the pants of the sets are similar in design (but different patterns) to the skull and helicopter flannel pants. There are no flannel pants listed for sale under the “The Bay” website. While the manner in which retailers advertise and market apparel is not dispositive as to the correct classification under the HTSUS, it is probative of the importer’s and the retailers’ view of the apparel and the market they are intending to reach. Inner Secrets, 19 C.I.T. at 506.
Overall, in consideration of the facts relating to the environment of sale of JV Apparel’s merchandise and similar articles, this factor appears to be ambiguous on the issue of whether the flannel pants are sleepwear or loungewear. There is not enough information provided on this factor to make a determination on how the ultimate purchaser perceives JV Apparel’s specific flannel pants.
Recognition in the Trade of Virtually Identical merchandise
Other retailers market and sell boys’ pants with similar features of the instant flannel pants as sleepwear. Target sells almost the exact same style and pattern as the brown skull JV Apparel pants as PJs under its sleepwear section, along with various other patterns on flannel pants. The GAP, Old Navy, Walmart, Kohl’s and Sears all sell similar polyester pants for boys under the sleepwear or pajamas sections of their respective boys departments. None of these retailers sell these types of pants under the “pants & shorts”, activewear, or other non-pajama/sleepwear sections. We recognize that these pants are sometimes described as “lounge pants.” Kohl’s, for example, has the term “lounge” in the merchandise name. However, Kohl’s, as well as the other retailers discussed above, market these pants as “sleepwear.” In Kohl’s specific case, it has the qualifying terms of “nighttime” and “sleepwear” in the descriptions of its “lounge pants” merchandise on its website.
The manner in which the apparel industry perceives and markets similar garments as sleepwear or bedtime wear sheds light on what the industry perceives similar pants at issue here to be. Inner Secrets, 19 C.I.T. at 505-06. Overall, the fact that most major retailers market similarly styled boys’ polyester pants as sleepwear and pajama pants demonstrates that the trade recognizes these types of pants as sleepwear.
Documentation Incidental to Purchase/Sale of Merchandise
Finally, JV Apparel has included a certificate of origin that lists the pants as “2PK Loung [sic] Pant” and “Sleep Pant”, a packing list describing the pants as the same, and catalogues for spring 2011 and summer 2011 that describe the pants as sleepwear. U.S. courts have recognized that internal company documents, such as invoices can be viewed as self-serving. Regali v. United States, 16 C.I.T. 407 (1992). Although, the term “lounge” is used to describe the pants when it comes in pairs, CBP notes that JV Apparel has specifically described its merchandise as “sleep” or “sleepwear” in documentation provided to its costumers (i.e. the catalogues). Overall, the internal documentation suggests that the pants are designed and intended to be used as sleepwear.
* * *
While the environment of sale factor is seemingly inconclusive as to the how the flannel pants are ultimately marketed and sold by the two retailers listed on JV Apparel’s packaging lists, the totality of the other factors, including the design characteristics of the pants, support the finding that the boys’ polyester flannel pants are goods of a class or kind principally used as sleepwear. Therefore, they are classified under heading 6107, HTSUS, as “[m]en’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted.”
CBP has classified similar pants, in cases where the physical characteristics and extrinsic evidence indicated that they were of a kind principally used as sleepwear. See HQ H030421 (classifying as sleepwear men’s pajama pants with an elasticized waistband, outside drawstring, lightweight loose construction, and unsecured fly that are marketed and sold as sleepwear); HQ 959084, dated July 18, 1997 (classifying as sleepwear men’s cotton knit jersey pull-on pants that had an elastic waistband, one button fly, side-seam pockets, and hemmed leg openings); and HQ 960432, dated August 22, 1997 (classifying as sleepwear pants with side seam pockets and no fly and pants with a fly with substantial one button closure and no side seam pockets or a one button closure with side seam pockets).
HOLDING:
Pursuant to GRI 1 (USARI 1(a)), the boys’ 100% polyester flannel 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: [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, and the visa category is 651.
The Protest should be GRANTED. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the Protest.
JV Apparel indicated in their memorandum that due to clerical error, the proforma invoice used by CBP for the entry summary on entry XXX-XXXXXXX-6 was incorrect. JV Apparel is instructed to provide CBP with the correct information when CBP recalculates the refund for the lower duty rate associated with heading 6107, HTSUS.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
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