Reconsideration of NY N234553; Classification of patient gowns from Honduras, Nicaragua and El Salvador

HQ H236648 July 29, 2013 CLA-2 OT:RR:CTF:TCM H236648 TNA CATEGORY: Classification TARIFF NO.: 6211.42.00 John T. Hyatt, Vice President The Irwin Brown Company 212 Chartres Street New Orleans, LA 70130 RE: Reconsideration of NY N234553; Classification of patient gowns from Honduras, Nicaragua and El Salvador Dear Mr. Hyatt: This letter is in reference to your request for reconsideration, dated December 11, 2012, of New York Ruling (“NY”) N234553, issued to you on November 6, 2012, on behalf of Co Expo Ltd., concerning the tariff classification patient gowns from Honduras, Nicaragua and El Salvador. There, U.S. Customs and Border Protection (“CBP”) classified the subject gowns under subheading 6211.42.00, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of cotton: Other.” We have reviewed NY N234553 and found it to be correct. For the reasons set forth below, we hereby affirm NY N234553. FACTS: The subject merchandise consists of six styles of unisex patient gowns that are composed of 55% cotton and 45% polyester woven fabric. The garments at issue are Styles 74766430, 74020498, 74408930, 74242430, 73012430 and 75457431. The subject patient gowns are approximately knee length with short sleeves, a full back opening, and a textile tie at the back of the neck and waist. They are marketed for use in a clinical environment but are not marketed as sleepwear. They are sold to uniform and career apparel companies and institutional providers, who in turn sell them to hospitals, nursing facilities and similar institutions in the United States. ISSUE: Whether the subject hospital gowns are classified as sleepwear of heading 6208, HTSUS, or as other garments of heading 6211, HTSUS? LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States (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 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 HTSUS provisions under consideration are as follows: 6208 Women’s or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: 6211 Track suits, ski-suits and swimwear; other garments: 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. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The General ENs to Chapter 62, HTSUS, provides, in pertinent part, the following: Garments which cannot be identified as either men’s or boys’ garments or women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments. The EN to heading 6208, HTSUS, states, in pertinent part, the following: This heading covers underclothing for women or girls (singlets and other vests, slips, petticoats, briefs, panties and similar articles), not knitted or crocheted. The heading also includes nightdresses, pyjamas, négligés, bathrobes (including beachrobes), dressing gowns and similar articles for women or girls (garments usually worn indoors). The EN to heading 6211, HTSUS, states, in pertinent part, the following: The provisions of the Explanatory Note to heading 61.12 concerning track suits, ski suits and swimwear and of the Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading. However, the track suits of this heading may be lined. It should be noted that, unlike heading 61.14 this heading also covers tailored waistcoats separately presented, not knitted or crocheted. This heading also includes fabric in the piece, with the weft threads omitted at regular intervals, from which loin-cloths can be obtained by simple cutting and without further fabrication. Separate loin-cloths are also included. You argue that the subject merchandise should be classified as sleepwear of heading 6208, HTSUS. You acknowledge that there are a number of prior CBP rulings that classify unisex hospital gowns akin to the subject merchandise in heading 6211, HTSUS, such as NY B81984, dated February 26, 1997, NY F89374, dated August 2, 2000, and NY E81470, dated May 18, 1999. Nevertheless, you argue that the analysis of the physical characteristics of the instant garments require the same outcome as found in HQ H003893, dated March 11, 2010. We disagree. The merchandise in HQ H003893 was pants labeled as sleepwear. The question in that case was whether the pants were pajamas or loungewear, a determination which necessitates the weighing of a number of factors, including the physical characteristics of the garment. Here, even if the garment is of a light material or inappropriate for wear outside of the clinical setting, the fact remains that the items are hospital gowns and not sleepwear. They are designed for use in a clinical setting, where caregivers are expected to have access to private areas of the wearer’s body. They are worn all day, not just for sleeping. The ties at the neck are notably uncomfortable for the purpose. Furthermore, 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, citing several lexicographic sources, defined “nightclothes” as “garments to be worn to bed.” Based on an examination of the garment at issue, witness testimony, and other evidence concerning how the garment was marketed and advertised, the court determined that its merchandise was designed, manufactured, and used as nightwear and, therefore, was classifiable as nightwear. Mast Industries, 9 C.I.T. at 551-553. Likewise, in St. Eve International, Inc. v. United States, 11 C.I.T. 224 (1987) (“St. Eve”), the court ruled that the garments at issue were chiefly used as nightwear because they were manufactured, marketed and advertised as such. See also Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-06 (1995) (finding that the merchandise at issue was classifiable as underwear and not outerwear based upon an examination of the merchandise, witness testimony, and documentary evidence such as marketing and advertising materials.) Later court cases have held that night clothes and sleepwear are characterized by a sense of privateness or private activity such as sleeping, meaning 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. See International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff’d 153 F.3d 1378 (Fed. Cir. 1998). Subsequent CBP rulings have adhered to this analysis, and have determined the classification of similar garments based on an analysis of the physical characteristics of the garment. If the article is ambiguous in design, CBP has examined extrinsic evidence, such as marketing materials and invoices. See HQ H003893; HQ 967185, dated October 8, 2004; HQ 962021, dated September 19, 2001. CBP considers these factors in totality and no single factor determines classification. See HQ 967185; HQ 964513, dated February 11, 2002. In the present case, the subject gowns are shaped like hospital gowns and are made of the same material. They are marketed, sold to, and used in hospitals, nursing homes, and similar institutions. The importer concedes that they are not marketed as sleepwear, and that they are substantially similar to the merchandise of NY B81984, NY F89374, and NY E81470. The merchandise of each of these rulings was classified, not as sleepwear but as other garments of heading 6211, HTSUS. Furthermore, the subject gowns lack the characteristics of sleepwear. Even if a patient in a hospital could wear them to sleep, they are not of the class or kind of merchandise typically worn to sleep. They are not usually worn in private situations, such as in one’s home or in the company of close friends. As such, we find that the subject hospital gowns do not qualify as sleepwear. To the contrary, they are classified in heading 6211, as other garments. We note that although they are unisex garments, they are classified as women’s or girls’ garments in accordance with the General ENs to Chapter 69, HTSUS. See General EN to Chapter 69, HTSUS. This conclusion is consistent with prior CBP rulings. See, e.g., NY B81984; NY F89374; and NY E81470. HOLDING: Under the authority of GRI 1, the subject hospital gowns are classified in heading 6211, HTSUS. They are specifically provided for in subheading 6211.42.00, HTSUS, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, women's or girls: Of cotton.” The applicable duty rate is 8.1%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N234553, dated November 6, 2012, is AFFIRMED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division