OT:RR:CTF:FTM HQ H312047 MJD
Center Director
Apparel, Footwear & Textiles CEE
U.S. Customs and Border Protection
555 Battery Street, Room 401
San Francisco, CA 94111
Attn: Grace Carmichael, Senior Import Specialist; Angela Hultz, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 1303-20-102061; Tariff classification of men’s and boys’ garments.
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1303-20-102061, timely filed on June 17, 2020, on behalf of Intralin Corporation (“Protestant”), contesting U.S. Customs and Border Protection (“CBP”) classification of men’s and boys’ garments under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue consists of men’s and boys’ tops and bottoms made of 65% polyester and 35% cotton woven fabric. Protestant describes the garments as “pajama tops” and “pajama bottoms.” Style numbers 107523, 107524, and 107519 cover the tops, and style numbers 107517 and 107518 cover the bottoms. The tops and bottoms are not imported as sets, but rather as separate bulk orders in unequal quantities, and come in various colors. The tops feature a v-styled neckline, a full front opening with three left-over-right snap closures, long hemmed sleeves, a patch pocket on the left chest, and a straight hemmed bottom. The bottoms are pull-on style and feature an elastic waistband, no open fly, and hemmed leg openings. The imported garments are sold to the wholesaler and sole customer of Protestant’s and are then resold to a cooperative association that provides laundry and linen services to hospitals in the greater Rochester, New York area. The garments are made to certain specifications and are solely used for patients in hospitals.
The subject merchandise was entered under subheading 6207.99.8510, HTSUSA (“Annotated”), which provides for “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of other textile materials: Of man-made fibers: Other: Sleepwear.” CBP reclassified the bottoms under subheading 6203.43.9010, HTSUSA, which provides for “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: Of synthetic fibers: Other: Other: Other: Other: Other: Other: Trousers and breeches: Men’s.” The tops were also reclassified, but under subheading 6205.30.2070, HTSUSA, which provides for “Men’s or boys’ shirts: Of man-made fibers: Other: Other: Other: Other: Men’s.”
ISSUE:
What is the tariff classification of the men’s and boys’ garments at issue?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 1303-20-102061 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letter (“NY”) J80754, dated March 4, 2003; NY N162597, dated May 26, 2011; and Headquarters Ruling Letter (“HQ”) 967039, dated September 10, 2004.
Classification of goods 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 2019 HTSUS provisions under consideration are as follows:
6203 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear):
* * *
6205 Men’s or boys’ shirts:
* * *
6207 Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles:
* * *
Additional U.S. Rule of Interpretation (AUSR) 1(a), HTSUS, provides that:
In the absence of special language or context which otherwise requires--
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.
* * *
Protestant asserts that the subject merchandise should be classified as sleepwear under subheading 6207.99.8510, HTSUSA, which provides for “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of other textile materials: Of man-made fibers: Other: Sleepwear.” The Court of International Trade has addressed the classification of sleepwear in several cases and has established several factors to determine whether or not a garment is sleepwear. In Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F.2d 144 (Fed. Cir. 1986), the Court of International Trade 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 in that case 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 in that case 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 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, 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 October 8, 2004; 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.). See also Inner Secrets, 19 C.I.T. at 505-06. Factors to be considered include: the general physical characteristics of the merchandise, the expectations of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of the sale and the manner in which the merchandise is advertised and displayed, the use in the same manner as merchandise which defines the class, the recognition in the trade of this use, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. See St. Eve International, Inc. v. United States, 27 C.I.T. 758, 761-62, 767-68, 772 (2003); Inner Secrets, 19 C.I.T. at 503. CBP considers these factors in totality and no single factor is determinative of classification as each viewed alone may be flawed. See HQ 967185, dated October 8, 2004; and HQ 964513, dated February 11, 2002.
In classification of garments, merchandise itself may be strong evidence of its use. Mast 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 September 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). This means that they are 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.
In CBP’s Informed Compliance Publication (“ICP”) on Classification: Apparel Terminology under the HTSUS (June 2008), CBP provided, in pertinent part, the following guidelines for classification of sleepwear and loungewear:
Classification of garments as men’s and boys’ “nightshirts and pajamas” or “sleepwear” of headings 6107 and 6207, or women’s or girls’ “nightdresses, pajamas and similar articles” of headings 6108 and 6208 (hereinafter referred to collectively as “sleepwear”), is based upon the principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind. In determining whether a particular garment is sleepwear, the garment itself may be strong evidence of use. However, when presented with a garment that is somewhat ambiguous and not clearly recognizable as sleepwear, Customs will consider other factors such as environment of sale, advertising and marketing, and recognition in the trade of virtually identical merchandise. While certain documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, etc., will be examined, they may also be considered “self-serving.”
Although consideration is given to the way in which merchandise is marketed and sold, intimate apparel or sleepwear departments often sell a variety of merchandise besides sleepwear and intimate apparel, including garments intended to be worn as outerwear. The manner in which an article is sold and marketed is weighed in conjunction with other factors such as the physical characteristics of the garment.
Sleepwear is characterized by a sense of privateness or private activity. On the other hand, garments that are not sleepwear may fall into various fashion categories, including “loungewear” or “leisure wear,” which are loose, comfortable casual clothes that can be worn in a variety of settings. Loungewear may be worn at informal social occasions in and around the home, and for other non-private activities such as watching movies with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc. Loungewear garments will not be classified in the sleepwear headings, but in specific headings for the named articles. For example, loungewear shorts will be classified in the headings for shorts.
Certain garments are also marketed as having multiple uses that may include sleeping. Such garments would not be classified as sleepwear, but in the specific headings for the named articles.
In this informed compliance publication, men’s sleepwear is identified as:
[A] group of garments that are worn to bed for sleeping. Pajamas consist of two components covering the upper and lower torso. The upper part may be a pullover or shirt, and the lower part may be shorts or pants. The lower part sometimes encloses the feet. Nightshirts are long one-piece shirt-style or pullover-style garments, worn to bed for sleeping. Men’s and boys’ sleep tops and bottoms imported separately may be classified in the separate “sleepwear” provisions of heading 6107 or 6207, as appropriate. Refer also to the introductory note entitled “Notes on Sleepwear.” See also “Sleepwear (men’s and boys’)”.
In the instant case, based on physical examination of the garments, we find that the garments are not sleepwear classified in heading 6207, HTSUS, but are loungewear classified in heading 6203, HTSUS, for the bottoms and heading 6205, HTSUS, for the tops. First, the classification of garments as sleepwear in heading 6207, HTSUS, is based upon use because heading 6207, HTSUS, is a use provision. According to AUSR 1(a), the classification of a garment in a use provision, is based upon the principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind. Thus, in determining whether the garments at issue are sleepwear properly classified in heading 6207, HTSUS, it must be established that the garments principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind, is for sleeping. The garment itself may be strong evidence of its use as sleepwear.
Sleepwear is characterized by a sense of privateness or private activity. These are garments worn in private situations such as in one’s home while alone or in the company of close friends and family. The garments here are plain clothing that feature a v-styled neckline top with an opening that consist of three left- over-right snap closures, long hemmed sleeves, a patch pocket on the left chest, and a straight hemmed bottom, and pull-on style bottoms that feature an elastic waistband, no open fly, and hemmed leg openings. There is nothing private about the design or style of these tops and bottoms or nothing that would indicate that they would only be worn for sleeping and around close family and friends at the hospital. In addition, the garments at issue here are not light-weight, sheer, or revealing to indicate that the garments would only be worn for sleeping, in private, or at home around friends and family.
Moreover, with respect to the bottoms in this case, we note that a lack of a fly is normally suggestive of modesty, which is a feature useful for loungewear. See HQ H140735, dated December 29, 2015 (also stating that there is no requirement for boy’s sleepwear pants to have some type of fly feature); and HQ 956507, dated October 11, 1994 (stating that “the presence of a front fly is a matter of common sense and convenience in the case of pajamas, but such a feature might be avoided in the design of loungewear of simple construction.”). Lastly, despite the fact that these garments may be worn for sleeping, based on their physical characteristics, they are also worn for other purposes in and around the hospital. Garments which have multiple purposes apart from sleeping, would not be classified as sleepwear, but as loungewear, in the specific headings for the named articles. Thus, it is clear that a reasonable person would find these garments appropriate to be worn in public, in and around the hospital for a variety of other occasions, where they will be seen by anyone entering, visiting, or examining the patient. Based on the aforementioned, we find that the garments are not sleepwear, and are properly classified as loungewear in heading 6203, HTSUS, for the bottoms and heading 6205, HTSUS, for the tops.
Protestant relies on NY J80754, NY N162597, and HQ 967039, to claim that the garments at issue here are sleepwear. In NY J80754, CBP found that hospital issued patient pants constructed of woven 55% cotton and 45% polyester fabric were properly classified in heading 6207, HTSUS. The pants reached the ankles, had no pockets, and featured a fully elasticized enclosed waistband, cuffs, and a fly with two left over right snaps, one at the waistband and one at the midpoint. The pants in NY J80754 contained a fly, which make them different then the pants at issue in this case. As mentioned above, a fly is typically indicative of sleepwear because it provides privacy to the person wearing them, while a garment that does not have a fly, like the bottoms at issue here, is more commonly found to be loungewear. See HQ H140735, and HQ 956507 (also indicating that a decency element associated with wearing apparel might dictate a closure on a fly or no fly at all in the case of loungewear, whereas in the case of pajamas, unsecured flies are common).
Next, in NY N162597, CBP classified several men’s hospital wear in subheading 6207, HTSUS. Several of the garments in NY N162597 are similar to the tops and bottoms at issue in this case. However, NY N162597 states that “Specific catalog advertising was submitted for each of the garments showing that they are marketed and sold as separates for use as hospital patient wear.” When garments are ambiguous and not clearly recognizable as either loungewear or sleepwear, extrinsic evidence such as marketing and advertising is used to determine classification. See HQ 967185 and HQ 962021. However, the garments at issue here are not ambiguous, and thus do not require a consideration of extrinsic evidence such as marketing and advertising, unlike the garments in NY N162597. In fact, based off the physical characteristics of the garments i.e., the lack of privacy with regards to the design and style of the garments, the absence of a fly on the bottoms, and the fabric construction, which is neither sheer nor revealing, it is clear that the garments in the instant case are loungewear.
Lastly, in HQ 967039, CBP modified NY J83809, dated May 21, 2003, which had previously classified hospital garments identified as pajama shorts, pajama bottoms, and pajama tops as outerwear or loungewear in subheadings 6204.62.4055, 6203.42.4015, and 6205.20.2065, HTSUSA, respectively. The garments were not imported as sets, but as separate units and never in the same quantities. The shorts were unisex with a drawstring waist; the bottoms featured a non-gapping, overlap fly, which was bar-tacked in the middle and bottom, along with a color-coded, securely bar-tacked drawstring for easy size identification; and the top had long sleeves, a v-neckline, full front left over right four snap closures, and a left breast pocket. Protestant provided that the garments were designed, manufactured, marketed, and sold for use as sleepwear by hospital patients. CBP classified the garments as sleepwear in heading 6207, HTSUS, stating the following:
The garments are not worn outside, but inside in a hospital setting by patients who are receiving medical treatment to recuperate from illness or injury. In sum, the merchandise is designed for exclusive use by patients while staying in the hospital. Although the subject garments may be worn inside for social activity, it is our view that any use, other than use during a hospital stay while recuperating, would be a fugitive use. See Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988). Thus, it is our determination that the garments should be reclassified as sleepwear in heading 6207, which provides for, inter alia, pajamas and similar articles.
We find that HQ 967039 is distinguishable from the present case. CBP found that the garments in HQ 967039 were “designed for exclusive use by patients while staying in the hospital” indicating that the physical characteristics of the garments were akin to sleepwear, unlike the design of the tops and bottoms in this case that indicate that they are loungewear. For example, the bottoms in HQ 967039 are designed with an overlap fly whereas the pants in this case do not have a fly. Again, a fly is typically, but not always, associated with sleepwear, whereas the lack of a fly or closure on a fly is oftentimes associated with loungewear due to the fact that it provides an element of decency as required of loungewear. See HQ 956507.
Based on the foregoing, we find that the physical characteristics of the garments support a finding that the garments are loungewear. Specifically, we find that the tops are classified in subheading 6205.30.20, HTSUS, which provides for “Men’s or boys’ shirts: Of man-made fibers: Other: Other,” and the bottoms are classified in subheading 6203.43.90, 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): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other: Other: Other.”
HOLDING:
By application of GRIs 1 and 6, the men’s and boys’ garments at issue are classified as follows:
The tops, style numbers 107523, 107524, and 107519 are classified in heading 6205, HTSUS, and specifically in subheading 6205.30.20, HTSUS, which provides for “Men’s or boys’ shirts: Of man-made fibers: Other: Other.” The 2019 column one, general rate of duty is 29.1¢/kg + 25.9%.
The bottoms, style numbers 107517 and 107518 are classified in heading 6203, HTSUS, and specifically in subheading 6203.43.90, 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): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other: Other: Other.” The 2019 column one, general rate of duty is 27.9%.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division