CBP Ruling H142104

HQ H142104 August 10, 2011 CLA-2 OT: RR: CTF: TCM H142104 RES CATEGORY: Classification TARIFF NO.: 6207.91.3010 Port Director U.S. Customs and Border Protection Service Port-Charleston 200 East Bay Street Charleston, SC 29401 ATTN: Drusilla Addison, Import Specialist RE: Application for Further Review of Protest No. 1601-10-100289; Tariff classification of men's 100% woven cotton pants imported from India and Sri Lanka. Dear Port Director: This letter is in reply to the Application for Further Review ("AFR") of Protest No. 1601-10-100289 filed November 4, 2010, on behalf of The GAP Inc. ("The GAP"/"Protestant"). The Protest is against U.S. Customs and Border Protection's ("CBP") classification of ten styles of men's 100% cotton woven pants under heading 6203, Harmonized Tariff Schedule of the United States ("HTSUS"), as men's loungewear. FACTS: The articles at issue here are described on the entry documentation form as men's 100% woven cotton PJ pants ("PJ pants"). They are constructed of lightweight cotton fabric with a loose and roomy design. The pants have a covered elastic band at the waist with a functional drawstring, a one-button fly front opening, two side-seam pockets, a single back pocket, and hemmed leg openings. There are ten different styles involved in this AFR, which are style numbers: 663066 (Eldridge plaid pajama pants), 663067, 684574 (Center plaid pajama pants), 684572 (Buffalo plaid flannel pajama pants), 684589 (Joel plaid flannel pajama pants), 684587, 684575 (Reindeer Dog flannel pajama pants), 720825 (Cartoon Hearts pajama pants), 720838 (Sailboat pajamas), and 720836 (Retro Deco pajama pants). The instant AFR involves eight entries with entry dates from June 2, 2009, through December 23, 2009, inclusive. The articles were entered under subheading 6203.42.40, HTSUS, as "[m]en's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): [t]rousers, bib and brace overalls, breeches and shorts: [o]f cotton: [o]ther: [o]ther: [o]ther." The pants were liquidated between the dates of May 14, 2010, and November 5, 2010, inclusive, under the same subheading as entered. The GAP filed its protest and AFR on November 4, 2010.1 The GAP asserts that the proper classification of the men's woven cotton pants is under heading 6207, HTSUS, which provides for "[m]en's or boys singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles." ISSUE: Whether the subject merchandise is classified under heading 6203, HTSUS, as loungewear, or under heading 6207, HTSUS, as sleepwear? LAW AND ANALYSIS: Initially, CBP notes that the protest was timely filed on November 4, 2010, which is within 180 days after the earliest liquidation date of May 14, 2010. See 19 U.S.C. § 1514(c)(3). Additionally, CBP's classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2). Further Review of Protest No. 1601-10-100289 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the Protestant alleges that CBP's classification of the pants is inconsistent with CBP rulings, which concern the same or substantially similar merchandise, namely: Headquarters Ruling Letter ("HQ") 957862, dated December 21, 1995, HQ 959084, dated July 18, 1997, and HQ 960432, dated August 22, 1997. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be "determined according to the terms of the headings 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 2 through 6 may be applied in order. In understanding the language of the HTSUS, the Explanatory Notes of the Harmonized Commodity Description and Coding System (ENs), which constitute the official interpretation of the HTSUS at the international level, 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 HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The 2009 HTSUS headings under consideration in this case are as follows: 6203 Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): 6207 Men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Heading 6207, which covers a variety of men's and boy's garments that are commonly referred to as "sleepwear", is a use provision. See International Home Textiles, Inc. v. United States, 25 C.I.T. 980, 983 (Ct. Int'l Trade 2001) (finding that heading 6107, HTSUS, which reads almost exactly like heading 6207, HTSUS (it differs only in that the articles of heading 6107, HTSUS, are knitted or crocheted), is a use provision); International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff'd 153 F.3d 1378 (Fed. Cir. 1998). Additional U.S. Rule of Interpretation ("USARI") 1(a) of the HTSUS states in relevant part that, "[i]n the absence of special language or context which otherwise requires - (a) 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." Primal Lite, Inc. v. United States, 182 F.3d 1362, 1363-64 (Fed. Cir. 1999). The courts have established that garments principally used as sleepwear are "characterized by a sense of privateness . . . or private activity." International Home, 21 C.I.T. at 282; International Home, 25 C.I.T. at 983-85. Moreover, they have repeatedly distinguished sleepwear from "loungewear" on the grounds that garments principally used as loungewear are "worn at informal social activities in and around the home, and for other individual, non-private activities in and around the house", such as "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. Therefore, if the pants at issue here are determined to be sleepwear, they are classifiable under heading 6207, HTSUS. If, on the other hand, the pants are found to be loungewear, they are classifiable under heading 6203, HTSUS, as men's trousers. The determination of whether garments are classified as sleepwear or loungewear (also referred to as multi-purpose apparel) is controlled first by examination of the physical characteristics of a garment. See Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff'd 786 F. 2d 144 (Fed. Cir. 1986) (noting that "merchandise itself may be strong evidence of use."). See also International Home, 25 C.I.T. at 985-86; St. Eve International, Inc. v. United States, 27 C.I.T. 758, 767-69, 772 (Ct. Int'l Trade 2003). However, if a garment is ambiguous in design and not clearly recognizable as sleepwear or loungewear, the courts direct consideration of other factors, which include: the environment of sale (such as advertising, marketing, and the expectations of the ultimate purchaser); recognition in the trade of use of virtually identical merchandise; and other extrinsic evidence such as documentation incidental to the purchase and sale of the merchandise, i.e., purchase orders, invoices, and other internal documentation. St. Eve, 27 C.I.T. at 761, 768-70. See United States v. Carborundum Co., 63 C.C.P.A. 98, 102 (CCPA 1976); St. Eve International, Inc. v. United States, 11 C.I.T. 224, 226 (Ct. Int'l Trade 1987); Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-06 (Ct. Int'l Trade 1995); International Home, 25 C.I.T. at 985-88. See also HQ 962021, HQ 967185, and October 8, 2004. CBP considers the totality of those factors and no single factor is determinative of an article's classification. See HQ 964513, dated February 11, 2002; HQ H018500, dated February 8, 2008; HQ H003893, dated March 11, 2010; HQ H030421, May 10, 2010. These factors are analyzed below. Physical Characteristics An examination of a sample reveals that the pants at issue are constructed of a 100% woven cotton lightweight fabric with a loose and roomy design. They have a covered elastic waistband, a functional drawstring on the outside of the waist, two side seam pockets, one back pocket, a substantial button fly, and hemmed leg openings. There is nothing about the physical characteristics of the pants than unequivocally puts them in either the loungewear or sleepwear category. As such, we will consider the extrinsic factors articulated by the courts. Environment of Sale (including advertising, marketing, and expectations of the ultimate purchaser) The GAP provided in their memorandum screenshots of their website showing how the exact pants at issue were advertised.2 The screenshots show that the pants were described as "soft cozy pajama bottoms . . . ." The exact styles of the pants at issue are no longer sold on The GAP website. However, similar men's woven pull-on pants that are currently sold on The GAP website , albeit with different print designs on them, are advertised under the "sleep"3 section of the "sleep & lounge" department. In addition, these current pants are described as "PJ" bottoms. In comparison, under the "lounge" section, The GAP sells plain knit jersey pants with drawstrings and side seam pockets, but with no fly.4 These knit jersey pants appear to be modeled after athletic wear. While the manner in which The GAP advertises and markets its pants is not dispositive as to the correct classification under the HTSUS, it is probative of the way The Gap viewed the pants and the market it was trying to reach. Inner Secrets, 19 C.I.T. at 506. Thus, because the pants at issue here are substantially similar to pants on the present day GAP website which are marketed and sold as pajamas under the "sleep" section, we find that the expectations of the ultimate purchasers are that the pants are for use as sleepwear. Recognition in the Trade of Virtually Identical merchandise Other retailers sell pants with similar features as that of the instant pants as sleepwear. Walmart5, Target6, Macy's7, Kmart, 8 Sears, and Old Navy9 (which is owned by The GAP's parent company) sell similar men's woven or knit cotton pants that have an elastic waistband with a functional drawstring, one-button fly closure, and two side on-seam pockets under the sleepwear or pajamas sections of their respective men's departments. We recognize that these pants are sometimes described as "lounge pants." Old Navy, for example, sometimes calls these pants "men's lightweight patterned lounge pants" or "men's lightweight patterned sleep pants." However, Old Navy, as well as the other retailers discussed above, market these pants as "sleepwear" on their websites, regardless their designation as loungewear by some designers. The manner in which the apparel industry perceives and markets similar garments as sleepwear sheds light on what the industry perceives the pants at issue here to be. Inner Secrets, 19 C.I.T. at 505-06. Overall, the fact that most major retailers market similarly styled men's pull-on pants as PJ pants demonstrates that the trade recognizes these pants as sleepwear. Documentation Incidental to Purchase/Sale of Merchandise Finally, the GAP has included purchase orders that describe the pants as "'men's woven pj", invoices from the Sri Lankan manufacturers that have a brief description of the men's pants at issue as either "men's 100% woven pyjama pants" or "100% cotton woven men's pyjama pants", and invoices from the Indian manufacturers that describe the pant's as "men's 100 % cotton woven pj pants." U.S. courts have recognized that internal company documents, such as invoices can be viewed as self-serving. Regali v. United States, 16 C.I.T. 407 (1992). However, CBP does not completely disregard this evidence because there is a consistency in the labeling of the men's woven pants as pajamas or sleepwear throughout the supply chain, e.g., the website (labeling as pajamas and sold under the "sleep" section of the "sleep & lounge" department), the purchase orders (men's woven pj), and invoices (pyjama pants or pj pants). Thus, the internal documentation suggests that the pants are designed and intended to be used as sleepwear. * * * The totality of these factors supports the finding that the PJ pants are goods of a class or kind principally used as sleepwear. Therefore, they are classified under heading 6207, HTSUS, as "[m]en's or boys singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles." CBP has classified similar pants under heading 6207, HTSUS, in cases where the physical characteristics and extrinsic evidence indicated that they were of a kind principally used as sleepwear. See HQ 957862 (classifying as sleepwear pants with a twill tape waistband with a cotton twill drawstring, a button fly, two side seam pockets, a rear pocket with button closure, loose fitting bottoms, and extra long legs); HQ 959084 (classifying as sleepwear men's cotton knit jersey pull-on pants that had an elastic waistband, one button fly, side-seam pockets, and hemmed leg openings); and HQ 960432 (classifying as sleepwear pants with side seam pockets and no fly and classifying as sleepwear pants with a fly with substantial one button closure and no side seam pockets or a one button closure with side seam pockets). HOLDING: Pursuant to GRI 1 (USARI 1(a)), the men's 100% woven cotton PJ pants are classified under subheading 6207.91.3010, HTSUSA, which provides for "[m]en's or boys singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: [n]ightshirts and pajamas: [o]ther: [o]f cotton: [o]ther: [s]leepwear." The general, column one, rate of duty is 6.1 percent, ad valorem, and the visa category is 351. The Protest should be GRANTED. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the Protest. Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. 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, we suggest your client check the Textile Status Report for Absolute Quotas at www.cbp.gov close to the time of shipment to obtain the most current information available. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 1 One of the entries with an entry date of December 23, 2009, was liquidated on November 5, 2010, which is one day after the protest was filed on November, 4, 2010. This entry was added to the protest in the December 15, 2010, Customs Protest and Summons Information Report (Customs Form 6445A). 2 There is no date in the GAP's memorandum indicating when these screenshots were captured. Because the GAP's memorandum was filed in November of 2010, the assumption is that the screenshots are representative of what was sold on the GAP's website from sometime during that time frame. 3 See http://www.gap.com/browse/category.do?cid=45461 (last visited June 27, 2011). 4 See http://www.gap.com/browse/category.do?cid=5270 (last visited August 9, 2011). 5 See http://www.walmart.com/ip/Hanes-Men-s-Tartan-Plaid-Knit-Sleep-Pants/15214450 (last visited June 27, 2011). 6 See http://www.target.com/Sleepwear-Clothing-Accessories-Mens/b/13606751/ref=sc_fe_l_3_3608901 _8?node=13606751;(last visited June 27, 2011). 7See http://www1.macys.com/shop/mens/apparel/pajamas-robes/pajamas-loungewear?id=16296&edge= hybrid#!fn=sortBy%3DORIGINAL%26productsPerPage%3D100&!qvp=iqvp (last visited June 27, 2011). 8See http://www.sears.com/shc/s/s_10153_12605_Clothing_Men%27s_Sleepwear; http://www.kmart.com /shc/s/s_10151_10104_Clothing_Men%27s_Sleepwear?sbf=Brand&sbv=Joe+Boxer (last visited June 27, 2011). 9 See http://oldnavy.gap.com/browse/category.do?cid=38529 (last visited June 27, 2011). ?? ?? ?? ?? 7