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HQ H016583




February 8, 2008

CLA-2 OT:RR:CTF:TCM H016583 GC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0012; 6203.42.4016

John B. Pellegrini, Esq.
McGuire Woods, LLP
1345 Avenue of the Americas
New York, New York 10105-0106

RE: Tariff classification of a men’s knit shirt and a 100% cotton woven flannel pant, imported together in a set; Administrative review of New York Ruling Letter N013949

Dear Mr. Pellegrini:

On August 31, 2007, this office received your correspondence on behalf of Paris Asia, Ltd. (Paris), dated August 29, 2007, requesting review of New York Letter Ruling (NY) N013949, dated July 30, 2007, which pertains to the tariff classification of two garments imported by Paris. The matters discussed with you during a telephone conference on December 5, 2007 and also in your email submission on December 21, 2007 were also taken under advisement. Our ruling follows.

FACTS:

NY N013949 covers style number 44170415, which is a set consisting of two articles imported by Paris, one knit top and one woven pant. The top is constructed from 88% cotton, 12% polyester finely knit jersey fabric. It features a rib knit crew neckline; short, hemmed sleeves; a screen print on the left chest; and a straight hemmed bottom. The pants are constructed from 100% cotton, woven yarn dyed flannel fabric and feature a tunnel elastic waistband with an outside twill tape drawstring; a fly front opening with a one-button closure; side seam pockets; and hemmed leg openings.

The top and pants are folded together over cardboard, tied together with twill tape, and sold at retail as a gift set. A hangtag attached to the twill tape identifies the item as a “Sleepwear Set” and shows the brand name and the price.

According to the information provided, your client proposes that the subject apparel sets 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:

6109 T-shirts, singlets, tank tops and similar garments, 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 pajamas, depending on which component determines the classification. 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 6109, HTSUS (for the knit top), 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 top 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. Similarly, nothing about the pullover indicates a sense of privateness or private activity that is characteristic of sleepwear. Likewise, neither the top 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 heading 6207, HTSUS, would not be appropriate.

It should be noted that on the provided sample, there is a hangtag that reads, “Sleepwear Set,” attached to the twill tape that binds the two articles together. The hangtag also contains the brand logo and pricing information. The sample also has an adhesive label attached to the top, which reads, “Men’s 2PC Sleepwear Set” and also contains information about the materials along with the country of origin. You also state that the garments will be displayed as sleepwear sets on the selling floor, and provide a photograph of the subject garments on display.

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 packaging of the subject merchandise is the determinative factor in classification, you point to HQ 965113, dated June 29, 2001 and NY N015014, dated August 27, 2007. In both cases, CBP held that an apparel set consisting of flannel woven pants somewhat similar to those in this case along with knit tops constituted sleepwear. You correctly note that the conclusion in HQ 965113 was founded in part on the packaging of the sleepwear set, which was a sealed acetate box. The sets discussed in HQ 956113 were also displayed as sleepwear and there was prominent advertising depicting them as such. HQ 965113 notes that all of the physical features of the garments can also be found in loungewear. However, the ruling concluded that the subject apparel set was sleepwear because of the sealed acetate box packaging along with the corresponding advertising material. You advance the argument that the decision in HQ 965113 was not founded in the specific nature of the acetate packaging, but rather the fact that the components were asserted to be imported, marketed, displayed and sold as sleepwear sets. Because the apparel sets discussed here are also packaged together in addition to being marketed and displayed as sleepwear sets, you contend that the sets here should be treated the same as those discussed in HQ 965113.

However, the difference between the packing in HQ 965113 and NY N015014 and the packaging here is indeed important. With a sealed acetate package, the buyer is not able to undertake a full and thorough inspection of the merchandise. Because the buyer does not have the benefit of thoroughly examining the garment itself at the time of purchase, he or she must rely on the marketing material in order to discern whether the merchandise is to be used principally as sleepwear or outerwear. The same can be said for the garments classified in NY N015014. Like the garments discussed in HQ 965113, the garments subject to NY N015014 were also in a sealed package that could not be opened by the buyer prior to purchase. With the packaging described in HQ 965113 and NY N015014, there exists ambiguity as to whether the apparel is sleepwear or loungewear because the buyer is unable to undertake a thorough physical examination of the garment itself at the time of purchase. Indeed, “most consumers tend to purchase and use a garment in the manner in which it is marketed.” Mast at 551. Thus, for classification purposes, CBP will look to additional factors such as marketing material and environment of sale. HQ 965113 correctly stated that the totality of such factors lead to the conclusion that the subject goods were indeed classifiable as sleepwear. NY N015014 is consistent with this conclusion.

In this case, there is no such ambiguity about whether the subject articles are loungewear or sleepwear. The buyer can hold the garments, touch them, and examine each feature. Such an examination would lead to the conclusion, which has been detailed above, that the apparel set is not characterized by a sense of private activity, nor that its primary use is for sleeping. Consequently, the subject merchandise should be classified as outerwear.

HOLDING:

By application of GRI 1, the pants within the subject apparel set, style number 44170415, are classifiable in heading 6203, HTSUS, and are specifically provided for in subheading 6203.42.4016, HTSUS, which provides for, inter alia, “Men’s or boys’ trousers: 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 top within the subject apparel set, style number 44170415, is classified in heading 6109, HTSUS, as a T-shirt, and is specifically provided for in subheading 6109.10.0012, HTSUSA, which provides for, inter alia, “T-shirts knitted or crocheted: Of cotton: Men’s or boys: Other T-shirts: Men’s.” 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 subheading 6203.42.4016, HTSUSA, falls within textile category 347. Merchandise classifiable in subheading 6109.10.0012, 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

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