OT:RR:CTF:FTM H323156 JER
Center Director
Apparel, Footwear & Textiles CEE U.S. Customs and Border Protection 40 South Gay Street, Room 120
Baltimore, MD 21202
Attn: Susan Coleman, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 5301-21-107666; Tariff Classification of Men’s Pants
Dear Center Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5301-21-107666, timely filed on September 30, 2021, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Bioworld Merchandising Inc. (“Bioworld” also referred to herein as “Protestant”), concerning the classification of certain men’s pants described as sleep pants, under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise was initially entered on or about August 10, 2020, under heading 6107, HTSUS, as sleepwear. However, U.S. Customs & Border Protection (“CBP”) liquidated the merchandise under heading 6103, HTSUS, as outerwear (or loungewear).
The merchandise at issue is Style No. BLZPMNSWB, which is a men’s pants like garment. Protestant describes the merchandise as being 60 percent cotton/40 percent polyester blended knit fabric, with a weight of 140 grams per square feet (“GSM”). It has a tunnel elastic waistband, a drawstring, single button/fly closure, hemmed leg openings, and side pockets. Protestant states that the fabric is light weight and partially translucent, meaning it is partially see-through when the garment is held up to the light.
In its submission, Bioworld provided a sample of the subject merchandise, garments specification and internal attributes spreadsheet, chart and photos of Bioworld Men’s sleep pants with style and item numbers, purchase order from a retail chain, purchase orders sent to the manufacturer, and commercial invoices and packing lists. Among the documents submitted, Protestant provided a Product Key which identifies the attributes of Style No. BLZPMNSWB and reads as follows: BL (Blanks), ZP (Sleep Pants), MN (Men’s), SW (Sleepwear Fabric), B (Black). One of the documents provided also indicates the attributes for the subject garment and other Bioworld “sleepwear” pants.
ISSUE:
Whether the imported men’s pants are classified as loungewear (outerwear) under heading 6103, HTSUS, or as sleepwear under heading 6107, HTSUS.
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 on or about September 30, 2021, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 5301-21-107666 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
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 2020 HTSUS provisions under consideration 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 of crocheted:
6103.42 Of cotton:
6103.42.10 Trousers, breeches and shorts…
Trousers and breeches:
6103.42.1020 Men’s
* * *
6107 Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns, and similar articles, knitted or crocheted:
Nightshirts and pajamas:
Of cotton…
* * *
Other:
6107.91.00 Of cotton…
Sleepwear
6107.99 Of other textile materials…
* * *
At issue is whether Style No. BLZPMNSWB, is classified as outerwear (i.e., loungewear or leisure wear) in heading 6103, HTSUS, or under heading 6107, HTSUS, as sleepwear. Heading 6103, HTSUS, provides in relevant part for, “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted of crocheted.” By contrast, heading 6107, HTSUS provides for, “Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns, and similar articles, knitted or crocheted.” Protestant argues that classification of this merchandise under heading 6103, HTSUS, is inconsistent with prior rulings on substantially similar garments. In support of its argument, Protestant lists several CBP rulings and cites to multiple court decisions which address the classification of sleepwear and outerwear.
To establish the appropriate heading of the subject merchandise, we first examine the meaning of the two competing terms: loungewear and sleepwear and the factors that are used to distinguish these two types of garments. The Court of International Trade (“C.I.T.”) has previously addressed the classification of loungewear and sleepwear and in doing so identified certain physical characteristics and several factors to be used when determining whether a garment’s primary use was for private activity (sleeping) or for social activities (outerwear). In International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff’d International Home Textile, Inc. v. United States, 153 F.3d 1378 (Fed. Cir. 1998), the C.I.T. examined garments which were loose fitting, lightweight, and cotton, made with or without a fly. The C.I.T. determined that loungewear did not have the character of a garment used for private activity. The court further determined that because of its construction, design, and marketing, loungewear may be worn at “informal social occasions in and around the home, and for other individual, non-private activities in and around the house e.g., watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like.” Likewise, CBP has previously determined that loungewear includes a variety of loose, comfortable casual clothes that can be worn in a variety of settings, including being worn in the home for comfort. See Headquarters Ruling Letter (“HQ”) 082624, dated March 22, 1989.
Sleepwear, by contrast, is “characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing).” International Home Textile, 21 C.I.T. at 282. The courts noted that the exemplars listed in heading 6107, HTSUS, “evoke a sense of privacy.” Id. at 282, see also, International Home Textile II, 153 F.3d at 1381 (concurring that HTSUS heading 6107 “is indeed limited to garments for private uses”). In defining “sleepwear,” the court cited several lexicographic sources, among them Webster’s Third New International Dictionary, which defined “nightclothes” as “garments to be worn to bed.” See Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F. 2d 144 (Fed. Cir. 1986). Similarly, CBP has previously noted that the fabric used for sleepwear must be lightweight and (often) translucent. See HQ 961036, dated April 27, 1998. Likewise, in St. Eve International, Inc. v. United States, 27 C.I.T. 758, 767-69, 772 (2003), the C.I.T. noted that fabric used for underwear and intimate apparel should be soft to the touch, light weight, and preferably weighing 180 grams per square meter or less.
In determining whether a garment is classifiable as either loungewear or sleepwear, the courts first examine the physical characteristics of the garment. See Mast Industries, at 551 (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, CBP has also stated that both loungewear and sleepwear may be loose fitting, oversized and made of comfortable fabric and therefore suitable for either sleeping or leisure wear. See HQ 953001, dated January 21, 1993. Hence, the physical characteristics of the garment alone may not be determinative of its classification. Accordingly, when an examination of the garment’s physical characteristics results in a finding that the garment is so ambiguous that it is conceivable that the garment could be used as either outerwear (loungewear) or sleepwear, other factors are considered to determine classification. See HQ H003893, dated March 11, 2010 (in HQ H003893, CBP determined that the extrinsic evidence coupled with an examination of the physical characteristics of the sample supported a finding that the knit pants were classified as sleepwear and not loungewear). See also, HQ 967185, dated October 8, 2004 (indicating 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 September 19, 2001 (CBP noted that when a garment is not clearly recognizable as underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc.).
In such cases, the courts have considered the following factors: (1) the environment of sale (such as advertising, marketing, and the expectations of the ultimate purchaser); (2) recognition in the trade of use of virtually identical merchandise; and (3) 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, 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, at 224, 226 (1987). 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. See also, HQ H174863, dated January 18, 2021 (discussing the above-referenced factors to determine that classification of a garment as loungewear). All the aforementioned factors are considered in conjunction with the physical characteristics of the garment with no single factor being determinative. See HQ 964513, dated February 11, 2002; HQ H018500, dated February 8, 2008.
In the instant case, Style No. BLZPMNSWB are men’s pants made of cotton and polyester blended knit fabric with a weight of 140 GSM. The fabric is lightweight and partially translucent. Style No. BLZPMNSWB features a tunnel elastic waistband, a drawstring, single button/fly closure, hemmed leg openings, and side pockets. Based on its physical appearance and construction, we conclude that Style No. BLZPMNSWB is ambiguous, and it is conceivable that it could be suitable for use as either loungewear or sleepwear. Protestant, however, contends that Style No. BLZPMNSWB is primarily used as sleepwear and has the physical characteristics of articles which have been classified as sleepwear.
First, we consider the environment of sale of the subject garment. In Mast Industries, at 551, the court pointed out that the expert witnesses in that case agreed “that most consumers purchase and use a garment in the manner in which it is marketed.” According to Protestant, Bioworld’s “sleep pants” are marketed, advertised, and sold exclusively as sleepwear. In support of this position, Protestant cites to a Target.com website, a Hot-Topic website and an Amazon.com website, all of which purport to feature and advertise the subject merchandise as sleepwear. Our investigation of the website links provided supports Protestant’s position that the subject merchandise is marketed, advertised, and sold exclusively as sleepwear. In addition to the websites provided by Protestant, our research indicates that other retailers sell the Bioworld (“sleep”) pants. In particular, the Kmart, Sears, and Walmart websites indicate that each of these retail outlets sell Bioworld’s (“sleep”) pants as pajamas or sleepwear. Based on all the aforementioned, the advertising and marketing of the subject garments is as pajamas or garments for sleeping. Accordingly, CBP agrees that these garments are presented to consumers as sleepwear.
Next, we examine the recognition in the trade industry of virtually identical merchandise. Our research reveals that other retailers sell virtually identical merchandise with similar fabric, construction, and design as the subject merchandise. The similar merchandise is also marketed and sold as pajama pants and/or sleepwear. For example, Target sells Good Fellows & Co. pajama pants which are similar if not identical in fabric, design, and construction to the subject Style No. BLZPMNSWB. Similarly, Kohl’s markets and sells a pair of Men’s Van Heusen’s pajama pants that features, side seam pockets, flared hemmed legs, lightweight fabric, which are all substantially similar to the subject merchandise, except that it has an elastic waistband without a tunnel drawstring.
Lastly, we consider other extrinsic evidence such as documentation incidental to the purchase and sale of the merchandise (i.e., purchase orders, invoices, and other internal documentation). Protestant provided purchase orders from Family Dollar, which reflect that the merchandise was described as sleepwear. Similarly, the initiating purchase order sent to the manufacturer requests the manufacturing of “sleep pants.” We note, however, that the commercial invoice and packing list from the manufacturer to Bioworld describes the merchandise as “knitted men’s pants.” Courts have recognized that internal company documents, such as invoices can be viewed as self-serving. See Regali v. United States, 16 C.I.T. 407 (1992). Accordingly, the extrinsic evidence, standing alone is not determinative and shall be considered in conjunction with the totality of all the factors.
Based on an analysis of its physical characteristics coupled with the extrinsic evidence which includes marketing, advertising, documentation, and the environment of sale, we find that the Style No. BLZPMNSWB is principally used as sleepwear. Style No. BLZPMNSWB is composed of a lightweight blend of cotton and polyester with a weight of 140 GSM, which is partially translucent. With a weight of 140 GSM, the subject fabric is below the threshold limit for sleep or other intimate garments set forth in St. Eve. Additionally, even though Style No. BLZPMNSWB features a tunnel elastic waistband, a drawstring, single button/fly closure, hemmed leg openings, and side pockets, which might be indicative of loungewear, classification of the subject garment as sleepwear is consistent with previous CBP rulings which examined the physical characteristics of similar garments along with consideration of other factors such as the marketing and advertising of such garments. See HQ 962703, dated November 2, 2000 (CBP determined that the design, construction, and marketing of a garment established that its primary use was that of sleepwear); see also, 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); see also, 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). Accordingly, it is our position that subject men’s pants are “sleep pants” or sleepwear and therefore are classified under heading 6107, HTSUS.
HOLDING:
By application of GRI 1, HTSUS, the men’s pants are classified in heading 6107, HTSUS. Specifically, the men’s pants are classified under subheading 6107.91.1030, HTSUSA, which provides for: “Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns, and similar articles, knitted or crocheted: Other: Of Cotton: Sleepwear: Men’s.” The column one, general rate of duty is 8.7% ad valorem.
You are instructed to GRANT the Protest.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. 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 U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division