HQ H304295
OT:RR:CTF:FTM HQ H304295 TSM
Port Director
Port of Highgate Springs, VT
U.S. Customs and Border Protection
480 Welcome Center Road
Swanton, VT 05488
Attn: Patrick J. McCabe, Supervisory Import Specialist
Re: Protest and Application for Further Review No. 0212-18-100028; Classification of women’s garments.
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 0212-18-100028, timely filed on April 4, 2018, on behalf of The Vermont Teddy Bear Co., Inc. (“Protestant”), regarding the tariff classification of women’s garments under the Harmonized Tariff Schedule of the United States (“HTSUS”). A sample of the merchandise at issue was examined by this office. Pursuant to a request from the Protestant, a teleconference was held with the Protestant’s counsel on October 2, 2019.
FACTS:
Protestant describes the garments at issue as follows:
“[A] women’s 72% rayon, 23% polyester, 5% spandex knit cowl neck ‘lounge set,’ style no. 1160148 … The garments are packaged and sold together as a pajama set. They bear a hangtag that says ‘World Softest Pajama.’ The top has an attached hood and kangaroo pouch and the pants are loose fitting with a drawstring waist.”
Upon review of the sample, provided to us by the Protestant, we noted that the top features a drawstring cowl neck rather than a hood.
The subject merchandise covers two entries entered on November 7, 2017 and November 13, 2017, under subheading 6108.32.00, HTSUS, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightdresses and pajamas: Of man-made fibers.” The subject merchandise was liquidated on March 30, 2018, as pants and upper body garments under the following subheadings: (1) 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other”; and (2) 6104.69.20, HTSUS, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of other textile materials: Of artificial fibers: Trousers, breeches and shorts.”
Protestant claims that the subject merchandise should be classified under subheading 6108.32.00, HTSUS, as entered. In support of its claim Protestant argues, in relevant part, as follows:
The name of the importer is “Pajamagram” because everything it sells is designed, marketed and sold as pajamas and related sleepwear., e.g. nightgowns and robes. A company called “Pajamagram” would generally not be first place customers shopping for “loungewear” would look.
The garments at issue are described in Pajamagram’s catalogs as follows: “The World’s Softest Pajamas. Lighter than a cloud. Softer than a bunny. Like cashmere, only better. This sumptuous fabric is silky soft on the outside and double brushed on the inside. Long, loose-fitting tunic top features a drawstring cowl neck, kangaroo pockets, roll-back cuffs and side vents. Relaxed pants with back patch pockets.” The company’s previous website description that “the garment can be worn during the day or night, in and out of the house for quick trips to store or traveling” does not undermine or negate the principal use and marketing of this garment set as sleepwear.
The garments under consideration here are distinguishable from the garments at issue in the following rulings: HQ 964513, dated February 11, 2002 (the garments were clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping and nothing provided to Customs suggested they were designed or intended for wear while sleeping); HQ H282931, dated September 29, 2017 (the garments were marketed as both loungewear and sleepwear); HQ 966234, dated September 2, 2003 (at issue was a single/panty set of translucent lace-like knit fabric, presenting the issue of whether the garment should be classified as either underwear or sleepwear).
The merchandise at issue in International Home Textiles v. United States, 21 C.I.T. 280 (1997), is distinguishable from the loungewear at issue. In that case, the subject merchandise was men’s cotton knit shirts and pants, stipulated to be primarily used as loungewear and not for sleeping.
ISSUE:
What is the tariff classification of the women’s 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. 0212-18-100028 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (b) because Protestant alleges that the decision against which the protest was filed involves questions of law and fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Merchandise imported into the United States is classified under HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS provisions under consideration are as follows:
6104 Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted:
* * *
6108 Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
* * *
6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted:
* * *
Note 14 to Section XI provides as follows:
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.
* * *
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.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
Explanatory note to heading 6108, HTSUS, provides, in pertinent part:
* * *
This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely slips, petticoats, briefs, panties and similar articles (underclothing) and nightdresses, pyjamas, négligés, bathrobes (including beachrobes), dressing gowns and similar articles.
* * *
In the classification of garments determined to be sleepwear, CBP considers factors discussed in several decisions by the Court of International Trade. 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 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, the determination of the 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 Headquarters Ruling Letter (“HQ”) 967185, dated October 8, 2004 (stating 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 (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 an Informed Compliance Publication (“ICP”), 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.”
See, CBP Informed Compliance Publication on Classification: Apparel Terminology under the HTSUS, June 2008.
Based on the physical examination of the garments under consideration, we find that they are not characterized by a sense of privacy as is typical of sleepwear. Their constituent material is not sheer or revealing and they do not have the visual appearance of sleepwear. For example, a drawstring cowl neck is unlikely to be comfortable when worn during sleep and is not typically a feature found on a sleep garment. Instead, these garments are loose, casual clothes that are designed to be worn for comfort. Based on our examination, we also find that these garments are very likely to give the ultimate consumer the idea that they are items of general apparel, since their fabric, construction and design are suitable for the type of activities named in International Home Textile, Inc. In fact, we find that nothing precludes these garments from being worn in and around the home, in a private setting, or outdoors, in a more social environment. They can easily be worn for 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. Accordingly, we find that nothing in the design or appearance of the garments under consideration makes them unsuitable for use as loungewear. The garments in question are clearly recognizable as loungewear, and are not ambiguous in design. See HQ 082624, dated March 22, 1989 (loungewear includes a variety of loose, comfortable casual clothes that can be worn in a variety of settings).
Even if the garments under consideration were ambiguous in design, extrinsic evidence as well as the arguments presented by the Protestant do not establish that these garments are in fact sleepwear. Protestant provided several copies of its catalogs to demonstrate that the garments at issue are sold as sleepwear. See Pajamagram’s “Valentine’s Day 2018” catalog, pages 4 and 5, describing the garments at issue as “The World’s Softest Pajamas”; See also Pajamagram’s “Happy Holidays 2017” catalog, pages 14 and 15. However, upon review we noted that the same catalogs also describe the garments at issue as “World’s Softest Lounge Set.” See Pajamagram’s “Valentine’s Day 2018” catalog, page 33; See also Pajamagram’s “Happy Holidays 2017” catalog, page 47. Moreover, Protestant also provided commercial invoices, in which the garments at issue are also described as both “pajamas” and “lounge sets.” See Invoice dated September 29, 2017, identifying the garments at issue as “World’s Softest Pajama”; See also Commercial invoice dated October 9, 2017, identifying the garments at issue as both “World’s Softest Teal/Pink/Gray Cowl-Neck Lounge Set” and “World’s Softest Teal/Pink/Gray PJ.”
Noting that internal company documents, such as invoices, can be viewed as self-serving, Regali v. United States, 16 C.I.T. 407 (1992), and the manner in which the garments at issue are advertised and marketed to the ultimate purchaser, CBP is of the opinion that the extrinsic evidence does not substantiate the Protestant’s claim for classifying the garments at issue as sleepwear. While these garments are sold by a company called “Pajamagram,” upon review of the catalogs provided we noted that several of the items featured had the appearance of loungewear and were described as such. Although Protestant argued that the garments at issue are described in its catalogs as pajamas, it also acknowledged that the company’s previous website description of these garments was that these garments “can be worn during the day or night, in and out of the house for quick trips to store or traveling.” See also CBP Form 29, dated February 1, 2018 (in relevant part stating that “Descriptive literature and marketing/advertising material provided [with Protestant’s response to CBP’s Request for Information] states that the garment can be worn during the ‘day or night, in and out of the house for quick trips to store or traveling.’ ” Upon review of the sample of the garment set at issue and consistent with the above discussion, we find that the physical characteristics of the garments at issue support this description.
In its submission, Protestant also argued that the garments under consideration are distinguishable from those at issue in HQ 964513, HQ H282931 and HQ 966234, since those garments were either clearly presented as loungewear, marketed as both loungewear and sleepwear, or issues with regard to their classification arose based on their physical characteristics. Protestant also argued that the garments under consideration are distinguishable from those at issue in International Home, since they were stipulated to be primarily used as loungewear and not for sleeping. Upon review, we find that these arguments are without merit. First, once again we note that consideration of the physical characteristics is most crucial when determining the tariff classification of any garment. In this case, as discussed above, nothing in the design or appearance of the garments under consideration makes them unsuitable for use as loungewear. With regard to the way the garments at issue were marketed and advertised, we note that in at least some of its catalogs and invoices the Protestant described them as “lounge set,” and stated on its website that they “can be worn during the day or night, in and out of the house for quick trips to store or traveling.”
Based on the foregoing, we find that examination of the physical characteristics of the garments at issue, coupled with extrinsic evidence, support a finding that they are not principally used as sleepwear and are therefore classified as loungewear. Specifically, we find that the tops are classified in subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” The pants are classified in subheading 6104.69.20, HTSUS, which provides for “Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of other textile materials: Of artificial fibers: Trousers, breeches and shorts.”
HOLDING:
By application of GRIs 1 and 6, the women’s garments at issue are classified as follows:
The tops are classified in heading 6110, HTSUS, and specifically in subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” The 2017 column one, general duty rate of duty is 32% ad valorem.
The pants are classified in heading 6104, HTSUS, and specifically in subheading 6104.69.20, HTSUS, which provides for “Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of other textile materials: Of artificial fibers: Trousers, breeches and shorts.” The 2017 column one, general duty rate of duty is 28.2% ad valorem.
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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division