OT:RR:CTF:FTM H323157 TJS
TARIFF NOs.: 6104.63.20; 6106.20.20
Center Director
U.S. Customs and Border Protection
Apparel, Footwear & Textiles CEE
555 Battery Street, Room 401
San Francisco, CA 94111
Attn: Eddie Griffin, Import Specialist
Re: Application for Further Review of Protest No. 2704-22-159074; Tariff Classification of Women’s 2-Piece Garment Sets
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-22-159074 (“Protest”), timely filed on January 7, 2022, by Canada Inc., dba Jammers Apparel Group (hereinafter, “Protestant” or “Jammers”), concerning the tariff classification of several styles of women’s 2-piece garment sets under the Harmonized Tariff Schedule of the United States (“HTSUS”).
Protestant has asked that certain information submitted in connection with this Protest be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. Certain information contained in the submission and the exhibits that you forwarded to our office will not be released to the public and will be withheld from published versions of this ruling.
FACTS:
The merchandise at issue consists of several styles of women’s 2-piece garment sets containing a matching top and pair of shorts. Each garment is constructed from 65% polyester, 35% rayon knit fabric. Protestant provided a sample set, Style 29007395. The sample blouse measures at least 10 or more stitches per linear centimeter measured in both directions. The loose-fitting top extends from the shoulders to below the waist and features a rib knit round neckline, short raglan unfinished sleeves, and a straight unfinished bottom. The pull-on shorts feature an elasticized waistband, a braided drawstring with wrapped knotted ends, and wide unfinished leg bottoms. According to Protestant, each set is imported and sold under a single style number.
The subject merchandise was entered in 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.” U.S. Customs and Border Protection (“CBP”) liquidated the shorts in subheading 6104.63.20, 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 synthetic fibers: Other: Other.” The tops were liquidated 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.”
Protestant asserts that the garment sets should be classified as entered under heading 6108, HTSUS, as sleepwear. In support of this position, Protestant provided documentation that shows the sets are marketed and sold as sleepwear and states that the garments are sold in the sleepwear section of a retail store, to which it sold the merchandise. Protestant provided copies of invoices, a bill of lading, and purchase orders that refer to the garments as “sleepwear.” Protestant also states that Jammers is a sleepwear company.
ISSUE:
What is the tariff classification of the women’s 2-piece garment sets under the 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 within 180 days of liquidation of the entries. (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. 2704-22-159074 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because it involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts, but facts are alleged or legal arguments presented, which were not considered at the time of the original ruling.
Classification under the HTSUS is determined 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 2021 HTSUS headings 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:
6106: Women’s or girls’ blouses and shirts, 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:
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Note 14 to Section XI, HTSUS, 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.
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Note 4 to Chapter 61, HTSUS, provides as follows:
Headings 6105 and 6106 do not cover garments with pockets below the waist, with a ribbed waistband or other means of tightening at the bottom of the garment, or garments having an average of less than 10 stiches per linear centimeter in each direction counted on an area measuring at least 10 cm by 10 cm. Heading 6105 does not cover sleeveless garments.
“Shirts” and “shirt-blouses” are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline. “Blouses” are loose-fitting garments also designed to cover the upper part of the body but may be sleeveless and with or without an opening at the neckline. “Shirts”, “shirt-blouses” and “blouses” may also have a collar.
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The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-90, 54 Fed Reg. 35127, 35128 (Aug. 23, 1989).
The EN to Chapter 61, HTSUS, provides in pertinent part:
By application of Note 14 to Section XI, garments of different headings are to be classified in their own headings even if put up in sets for retail sale. This, however, does not apply to garments put up in sets which are specifically mentioned in the heading texts, for example, suits, pyjamas, swimwear. It should be noted that, for the application of Note 14 to Section XI, the expression “textile garments” means garments of headings 61.01 to 61.14.
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The EN to 61.06 provides, in relevant part, as follows:
This heading does not cover garments with pockets below the waist, with a ribbed waistband or other means of tightening at the bottom of the garment, or garments having an average of less than 10 stitches per linear centimetre in each direction counted on an area measuring at least 10 cm x 10 cm (see Chapter Note 4).
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Protestant contends that the garments’ appearance and the extrinsic information provided establish that the subject articles are principally used and recognized as sleepwear. Therefore, Protestant argues that the subject apparel sets should be classified as sleepwear in heading 6108, HTSUS, rather than as loungewear or outerwear.
To establish the appropriate heading of the subject merchandise, we first examine the meaning of the two competing terms–sleepwear and loungewear–and the factors that are used to distinguish these two types of garments. The Court of International Trade (“CIT”) 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 (sleepwear) or for social activities (outerwear). In International Home Textile, Inc. v. United States, 21 C.I.T. 280 (1997), aff’d 153 F.3d 1378 (Fed. Cir. 1998), the CIT examined garments which were loose fitting, lightweight, and cotton, made with or without a fly. The court determined that garments considered pajamas or sleepwear are characterized by a sense of privateness or private activity. Id. at 282. This means that they are worn in private situations, such as when alone in one’s home or in the company of only intimate friends and close family. The CIT determined that the garments at issue in International Home Textile were loungewear because they did not have the character of garments used for private activity. Id. at 282. The court further noted 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.” Id. 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”) H304295 (Nov. 13, 2019); and HQ 082624 (Mar. 22, 1989). In essence, loungewear includes 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.
When determining the classification of imported garments, we must examine the physical characteristics of the article. If the article is ambiguous in design and not clearly recognizable, CBP will examine extrinsic evidence such as marketing materials and documentation incidental to the purchase and sale of the merchandise. See HQ 967185 (Oct. 8, 2004) (outlining that CBP’s policy is to carefully examine the physical characteristics of garments at issue; to be supplemented with a consideration of extrinsic evidence when necessary); and HQ 962021 (Sept. 19, 2001) (stating that when a garment is not clearly recognizable as either underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc.). It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, CBP recognizes that internal documentation and descriptions on invoices may be self-serving, as was noted by the CIT in Regaliti, Inc. v. United States, 16 C.I.T. 407 (May 21, 1992). CBP has long acknowledged that sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outerwear. See HQ 955341 (May 12, 1994). As such, when classifying garments, the merchandise itself may act as strong evidence of its use. Mast Industries, Inc. v. United States, 9 C.I.T. at 552 (citing United States v. Bruce Duncan Co., 50 C.C.P.A. 43, 46 (1963)).
Regarding the women’s shorts and upper body garments at issue here, we find that their physical characteristics are neither indicative of nor characterized by a sense of privacy as is typical of sleepwear. The garments lack any features which would impart the wearer with a sense of privacy. The garments’ fabric is not sheer and the openings at the neck, arms, and legs are not so loose as to reveal the wearer’s body. Moreover, the shorts’ drawstring is thickly braided and is unlikely to be comfortable when worn during sleep. The garments’ styling, fabric, cut, and construction do not have the visual appearance of sleepwear and do not indicate that the garments were primarily designed to be worn to bed. Nothing in their construction or design suggests it is inappropriate for the garments to be worn in informal social or non-private settings. Rather, the shorts and upper body garments are merely loose, casual clothes that are designed to be worn for comfort and are suitable for the types of activities enumerated within International Home Textile, such as being worn in and around the home, in a private setting, or outdoors in a social environment. Specifically, these garments appear suitable for use while watching movies at home with guests, barbequing at a backyard gathering, maintaining one’s home or yard, washing their car, or walking the family pet. Although the garments may also be worn as sleepwear, their design does not limit their use only for sleeping. We find that this additional use would not result in its classification as sleepwear. Furthermore, we conclude that since the garments at issue are not ambiguous in design, consideration of extrinsic evidence–such as marketing and advertising materials–is unnecessary to reach an ultimate determination.
Based on the foregoing, we find that examination of the physical characteristics of the garments at issue support a finding that they are not principally used as sleepwear and are therefore classified as loungewear. Accordingly, the women’s shorts and top are classified separately in their respective headings. The shorts are classified in heading 6104, HTSUS, and specifically under subheading 6104.63.20, 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 synthetic fibers: Other: Other.”
The top was liquidated under heading 6110, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” However, we find that the top is properly classified under heading 6106, HTSUS, as a women’s blouse. The subject top does not meet the exclusions provided for in Note 4 to Chapter 61, HTSUS, because it does not have pockets below the waist nor a ribbed waistband or other means of tightening at the bottom of the garment. Moreover, the top measures more than 10 stiches per linear centimeter in each direction. Next, we must determine whether the subject garment meets the definitions for “shirts,” “shirt-blouses” or “blouses” provided for in Note 4 to Chapter 61, HTSUS. Note 4 to Chapter 61, HTSUS, defines “blouses” as “loose-fitting garments also designed to cover the upper part of the body but may be sleeveless and with or without an opening at the neckline.” The subject top is a loose-fitting garment designed to cover the upper part of the body. Therefore, the top meets the definition of “blouse” under Note 4 to Chapter 61, HTSUS, and is classifiable in heading 6106, HTSUS. As a woman’s blouse constructed from polyester and rayon knit fabric, the subject top is classified in subheading 6106.20.20, HTSUS, which provides for “Women’s or girls’ blouses and shirts, knitted or crocheted: Of man-made fibers: Other.”
HOLDING:
By application of GRI 1 and 6, the women’s shorts are classified in heading 6104, HTSUS, specifically under subheading 6104.63.20, 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 synthetic fibers: Other: Other.” The 2021 column one, general rate of duty is 28.2% ad valorem.
By application of GRI 1 and 6, the women’s tops are classified in heading 6106, HTSUS, specifically under subheading 6106.20.20, HTSUS, which provides for “Women’s or girls’ blouses and shirts, knitted or crocheted: Of man-made fibers: Other.” The 2021 column one, general rate of duty is 32% ad valorem.
Since reclassification of the merchandise as indicated above would result in no net duty reduction, you are instructed to DENY the protest in full.
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 the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division