CLA-2 OT:RR:CTF:TCM H017426 GC
Mr. Peter Salvato
Import Commodity Group, LTD.
131 East Merrick Road
Valley Stream, New York 11580
RE: Classification of men’s apparel sets consisting of one pair of knit or woven pants and one knit top.
Dear Mr. Salvato:
On September 13, 2007, this office received your correspondence on behalf of Briefly Stated, Inc., dated August 2, 2007, requesting binding rulings on two apparel sets identified respectively as a “Men’s Sleep Set” and a “Men’s Sleep 2 Set”. Our ruling follows.
FACTS:
Each ruling request contains of a sample apparel set, which consists of two different garments. One set, style LFBS001G, contains a men’s knit top and a pair of men’s knit pants, and the other set, style LFBS003S, contains a men’s knit top with woven pants. The knit tops from both styles are constructed from 100% cotton, finely knit jersey fabric and feature a rib knit crew neckline; short, hemmed sleeves; a screen print on the center chest; and a straight, hemmed bottom with side slits and a tail. The knit pants are constructed from 100% cotton, jersey knit fabric with an all-over printed design. The pants feature a covered elastic waistband with an outside drawstring; a fly front with a one-button closure; and hemmed leg openings. The woven pants bear the same characteristics with the exception that they are not composed of knit fabric, but of woven flannel.
The two garments comprising each apparel set will be folded together over cardboard and tied with twill tape. A hangtag for style LFBS001G is attached to the twill tape and identifies the item as a “2 Piece Set” and shows the size, the brand name, and the price. The back of the hangtag has a sketch of the two items and a bar code label bearing a logo indicating that the set will be sold at K-Mart stores. The hangtag for style LFBS003S, also attached to the twill tape, identifies the item as a “Men’s Sleep Set.” The back of the hangtag has a bar code label bearing a logo and the price of the set.
According to the information provided in your ruling requests, 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 Briefly Stated, Inc. men’s apparel sets?
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 provisions under consideration in this case 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 or crocheted:
* * *
Trousers, bib and brace overalls, breeches and shorts:
* * *
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:
6107.21.00 Of cotton:
6107.21.0010 Men’s
* * *
6109 T-shirts, singlets, tank tops and similar garments, knitted or crocheted:
6109.10.00 Of cotton:
Men’s or boys’:
* * *
6109.10.0027 Other
* * *
6203 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:
* * *
6203.42 Of cotton:
* * *
Other:
* * *
6203.42.40 Other:
* * *
6203.42.4016 Other
* * *
6207 Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles:
* * *
Nightshirts and pajamas:
6207.21.00 Of cotton,
* * *
Other:
6207.21.0030 Men’s
As indicated above, headings 6107 and 6207, HTSUS, provide for, inter alia, men’s nightshirts, pajamas and similar articles. CBP has consistently ruled that pajamas generally are two-piece garments worn 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 or loungewear, then the applicable headings are 6103, HTSUS (for knit pants), 6109, HTSUS (for the knit tops), and 6203, HTSUS (for the woven pants). Determining whether garments are classified as sleepwear or multi-purpose apparel is controlled by the 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 both the tops and bottoms comprising the samples 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 tops indicate a sense of privateness or private activity that is characteristic of sleepwear. Likewise, neither the tops nor the pants fit within the definition of sleepwear articulated by the court in Mast in that there is no indication that their use is to be worn to bed. As such, classification of the subject merchandise within headings 6107 and 6207, HTSUS, would not be appropriate.
It should be noted that the names given to the apparel sets at issue here, “Men’s Sleep Set” and “Men’s Sleep 2 Set,” indicate that the apparel is sleepwear. Moreover, the hangtag on one of the sets even states that the item is a “Men’s Sleep Set.” 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, 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). However, the above mentioned factors do not create the ambiguity that they are sometimes used to solve. 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. With respect to the items discussed here, examination of the garment itself sufficiently determines that the subject merchandise is characterized as multi-use garments.
Accordingly, headings 6103, 6203 and 6109, HTSUS, are the appropriate headings for classifying the subject merchandise. While examination of only the actual merchandise is sufficient for the determination that it is loungewear or multi-purpose wear, the marketing materials for substantially similar merchandise also support the conclusion. Advertising and marketing materials spanning the previous few years from K-Mart and other similar stores indicate that goods virtually identical to the merchandise discussed here are designed for use as loungewear, not sleepwear. These materials support the conclusion, from examining the provided samples, that the subject merchandise is not used in a manner consistent with sleepwear. Consequently, the articles comprising the subject apparel sets should be classified as multi-use clothing articles.
In classifying the subject goods, Note 14 to Section XI of the HTSUS mandates that the components of the apparel sets be classified separately. Note 14 states the following:
Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale. For the purposes of this note, the expression “textile garments” means garments of headings 6101 to 6114 and headings 6201 to 6211.
Because the subject the merchandise falls within the headings mentioned in Note 14, CBP is required to classify each garment that composes the apparel sets at issue here separately.
HOLDING:
By application of GRI 1, the pants within style LFBS001G of the Briefly Stated, Inc. apparel set are classified in heading 6103, HTSUS, as knit trousers, and are specifically provided for in subheading 6103.42.1020, HTSUSA, which provides for, inter alia, “Men’s or boys’… trousers… knitted or crocheted: …of cotton…” The general column one rate of duty is 16.1 per cent ad valorem.
The pants within style LFBS003S are classified in heading 6203, HTSUS, as trousers, and are specifically provided for in subheading 6203.42.4016, HTSUS, which provides for, inter alia, “Men’s or boys’… trousers… of cotton…” The general column one rate of duty is 16.6 per cent ad valorem.
The knit tops of both apparel sets are classified in heading, 6109, HTSUS, as a knit T-shirt, and is specifically provided for in subheading 6109.10.0027 HTSUSA, which provides for, inter alia, T-shirts… knitted or crocheted… of cotton…” The general column one rate of duty is 16.5 per cent 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.
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 number above applies 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,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch