CLA-2 RR:CR:TE 967039 TMF
Edward F. Juliano, Jr., Esq.
360 Massachusetts Avenue
Acton, MA 01720
RE: Modification of New York Ruling Letter (NY) J83809, dated May 21, 2003; Classification of hospital garments
Dear Mr. Juliano:
This letter is in response to your letter of February 5, 2004, in which you request reconsideration of New York Ruling Letter (NY) J83809, dated May 21, 2003, issued to your client, Standard Textile, Co., Inc., regarding our classification of certain hospital garments, identified as style numbers 74118330 (a pajama short), 724100430 (a pajama bottom), and 72401430 (a pajama top). The merchandise was classified in subheadings 6204.62.4055, 6203.42.4015 and 6205.20.2065, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), respectively.
Upon your request, we have reviewed NY J83809 and find this ruling to be partially in error as it relates to the classification of these goods. Therefore, this ruling modifies NY J83809 as it pertains to the classification of the aforementioned garments.
Pursuant to section 625(c), Tariff Act of 1930, as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993) notice of the proposed revocation of NY J83809 was published on August 4, 2004, in Vol. 38, No. 32 of the CUSTOMS BULLETIN. No comments were received in response to this notice.
You describe the merchandise as pajama tops and bottoms that are not imported as sets, but as separate units and never in the same quantities. You also describe the goods as “hospital sleepwear.” However, the description of the three articles at issue, which is taken from NY J83809, dated May 21, 2003, reads as follows:
[Style numbers] 74118330 Pajama Short, 724100430 Pajama Bottom and 72401430 Pajama Top are adult garments that are made in Mexico and Jordan (QIZ)[.] [They are] constructed of woven 55% cotton, 45% polyester fabric. [Style number] 74118330 Pajama Short is a unisex item with a drawstring waist. [Style number] 724100430 Pajama Bottom features a left over right front closure and drawstring waist. [Style number] 72401430 Pajama Top is long sleeve and features a v-neckline, full front left over right four snap closure and left breast pocket.
You indicated in your submission that the pajama bottom, identified as style number 72400430, was incorrectly listed as style number 724100430 and the correct style number is 72400430. Your submitted advertisement describes it as having a non-gapping, overlap fly, which is bar-tacked in the middle and bottom, along with a color-coded, securely bar-tacked drawstring for easy size identification.
You stated that all three articles are designed, manufactured, marketed and sold for use as sleepwear by hospital patients.
Whether the subject merchandise is properly classifiable as sleepwear under heading 6207, HTSUS, or as outerwear garments under headings 6203, 6204 and 6205, HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.
You requested reconsideration of NY J83809 because you believe that the articles at issue are classifiable in heading 6207, HTSUS, which provides for, inter alia, men’s nightshirts, pajamas and similar articles. In NY J83809, CBP stated that the goods were interchangeable with hospital scrubs. However, this statement is incorrect. The garments of NY J83809, which are at issue, are not “scrubs” within the meaning of the word or by how they are used.
First, the term “scrubs” is defined as a “protective garment worn by surgeons during operations.” See Hyperdictionary at www.hyperdictionary.com. In terms of the features that scrubs have, they are usually unisex, reversible, and the bottoms have a pocket on the rear. For examples, see Headquarters Ruling Letter (HQ) 964962 dated September 25, 2002 (classifying polyester cotton blend fabric scrub bottom and top which features a reversible style, with left side breast pockets and V-neck opening in subheading 6206.30.3040, HTSUS, which provides for women’s cotton woven blouses, shirts, and shirt-blouses and the scrub bottom in subheading 6204.62.4020, HTSUSA, which provides for women’s cotton woven trousers); and Port Decision (PD) B84280, dated April 25, 1997, classifying hospital scrubs consisting of a shirt and pants in subheading 6206.40.3030 and 6204.63.3510, HTSUSA, as a women’s man-made fiber shirt and pants, respectively.)
Your client also manufactures scrubs. In terms of the use of the garments at issue, you state that your client’s garments are designed, marketed and sold for patient use only, not hospital/health care personnel use, as demonstrated by the submitted advertisement which describes the goods as “patient apparel”. On your submitted invoices, the merchandise is described as “PJ pants”, “PJ shorts”, and “PJ top” which are sold to hospital clients. Although this information is helpful, it is not controlling as this does not indicate who the ultimate wearer of the garment will be in a hospital/healthcare setting.
With regard to the pajama top, it has an open front with a snap hook closing, which, according to your client, allows for “the medical provider to gain access to the patient’s chest area.” However, it is distinguishable from a scrub top because it does not have the usual pullover design with no front opening at the neck. With the pajama pant, your client’s affidavit describes it as having an overlap fly. However, scrub pants do not have a fly, as a fly “[may] come open and does not provide significant modesty to the user.” Your client also stated:
A doctor in a hospital would not use this product as a scrub pant because [it does] not provide…[a] degree of modesty. Moreover, a fly would serve no purpose on a scrub pant, which is designed to be used in a surgical environment, because the use of the fly by male medical staff for its intended purpose (to facilitate urination) would necessitate that the medical staff go back through the sterilization process again. Conversely, the fly serves an important purpose with respect to sleepwear for a patient, because it…facilitate[s] urination by a male patient.
* * *
Because scrub pants are specifically designed for medical staff, it would be extremely uncommon in a healthcare environment for a patient to wear scrub pants.
Some other features of scrub bottoms are that they have sewn pockets on both sides of the garment, which makes the pants reversible. According to your client, hospital sleepwear bottoms are designed for sleeping and do not need pockets. The same also applies to the subject pajama shorts that do not have a fly, any pockets or complete leg coverage. Thus, it is your position that as the articles at issue do not have any of these features, they are not suitable to be worn as scrubs by hospital/healthcare staff. You assert they are only for wear in the hospital by patients.
In the affidavit, your client also referred to the submitted advertisements which show the pajama pants in six other colors/pattern styles along with the one style, Tracy, blue-colored pajama top. Your client stated that the garments are offered in various printed fabric and other colors for easy coordination with other gowns. According to your client, scrubs are manufactured in a limited range of colors and fabrics selected by medical staff. We find that the garments are not scrubs, but we must consider whether they are sleepwear within heading 6207, HTSUSA.
First, CBP has consistently ruled that pajamas are generally two-piece garments worn for sleeping. One-piece garments are not classifiable as pajamas. Sleep shorts and sleep pants used for sleeping fall into a residual provision within heading 6207, HTSUS, for similar articles. In determining the classification of the subject garments, CBP usually considers the factors discussed in two decisions of the Court of International Trade. In Mast Industries, Inc. v United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986), the court dealt with the classification of a garment claimed to be sleepwear and cited Webster’s Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed." In Mast, the court ruled that the garments at issue were designed, manufactured, and marketed as nightwear and were chiefly used as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled that the garments at issue were designed, manufactured, and advertised as sleepwear and were chiefly used as sleepwear. In the case of International Home Textile, Inc. v. United States, 21 CIT 280, March 18, 1997, the court addressed the issue of whether certain men’s garments were properly classified under the provision for cotton pants, shorts and tops or as sleepwear under the HTSUSA. The court held that in order to be classified as sleepwear, the loungewear items at issue must share that essential character of being for a "private activity", e.g., sleeping. The court also stated that garments classified as sleepwear would be inappropriate for use 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."
The merchandise at issue was classified as outerwear or loungewear in headings 6203, 6204 or 6205, HTSUS, which provide for, inter alia, men’s trousers, women’s shorts, and men’s shirts, respectively. However, upon review, the merchandise, which is described by you as hospital garments/patient pajamas, is not scrubs. 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.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
NY J83809, dated May 21, 2003, is hereby modified. If the tops and bottoms are imported separately (or have no matching component in a shipment), they are classifiable as other sleepwear in subheading 6207.91.3010, HTSUSA, which provides for "Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of cotton: Other: Sleepwear,” dutiable under the general column one rate of 6.1 percent ad valorem, quota category number 351. If the tops and bottoms are imported in shipments containing equal numbers of matching tops and bottoms, they are classifiable as other men’s pajamas in subheading 6207.21.0030, HTSUSA, dutiable under the general column one rate of 8.9 percent ad valorem, quota category number 351.
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, to obtain the most current information available, we suggest you check on behalf of your client, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is now available on the CBP website at www.cbp.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should check on behalf of your client the local CPB office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Myles B. Harmon, Director
Commercial Rulings Division