CLA-2 OT:RR:CTF:TCM H264916 GaK
Kevin Maher
C-Air Customhouse Brokers
181 S. Franklin Avenue
Valley Stream, NY 11581
RE: Reconsideration of NY N260728; Classification of women’s knit pants
Dear Mr. Maher:
This is in reply to your letter received on March 19, 2015, in which you requested reconsideration of New York Ruling Letter (“NY”) N260728, dated February 11, 2015, which pertains to the tariff classification of women’s knit pants under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, the National Commodity Specialist Division (“NCSD”) determined that the product was classified in subheading 6104.62.20, HTSUS, which provides for “[w]omen’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of cotton.”
In your reconsideration request, you assert that the knit pants are classified as sleepwear of heading 6108, HTSUS, because they are advertised and sold as sleepwear. We disagree. In the determination of whether garments are classified as sleepwear, U.S. Customs and Border Protection (“CBP”) considers factors discussed in several decisions by the United States Court of International Trade. Heading 6108, HTSUS, provides for “[w]omen’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.” Heading 6108, HTSUS, is a principal use provision, which is characterized by a sense of privacy or private activity. 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 Headquarters Ruling Letter (“HQ”) 967185, dated October 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); and HQ 962021, dated September 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 964513, dated February 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.
Based on the physical examination of the garments, we find that they can be used as sleepwear or for lounging. These soft pants are not characterized by a sense of privacy as is typical of sleepwear. The constituent material is not sheer or revealing. Nothing precludes these garments from being worn in a social environment outside of the home.
In such circumstances, the principal use is determined by the manner in which the garments are designed, marketed and sold. While the garments may be used for sleepwear, it is our opinion that their principal use is for lounging. The garments are not characterized by a sense of privacy as typical of sleepwear. Furthermore, the advertising material and order confirmation e-mail shows that the pants were advertised as “Lounge Pant” as part of the importer’s “Sleep and Lounge collection.”
For all of the aforementioned reasons, we find that the women’s knit pants are loungewear, not sleepwear. We therefore affirm NY N260728, dated February 11, 2015.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division