Application for Further Review of Protest No. 2704-21-157569; Tariff classification of men’s trousers.

HQ H321038 August 28, 2024 OT:RR:CTF:FTM H321038 TSM CATEGORY: Classification TARIFF NO.: 6107.91.00; 6207.91.30 Center Director Apparel, Footwear and Textiles Center of Excellence and Expertise U.S. Customs and Border Protection 797 S. Zaragosa Rd. El Paso, TX 79907 Attn: Kathleen A. Cheney, Supervisory Import Specialist Re: Application for Further Review of Protest No. 2704-21-157569; Tariff classification of men’s trousers. Dear Center Director: The following is our decision regarding the Application for Further Review (“AFR”) of protest number 2704-21-157569, timely filed on September 7, 2021, on behalf of Exquisite Apparel Corporation (“Exquisite” or “Protestant”), regarding the tariff classification of men’s trousers under the Harmonized Tariff Schedule of the United States (“HTSUS”). Pursuant to a request from the Protestant, a meeting was held with the Protestant’s counsel on July 6, 2023. Following this meeting, on August 15, 2023, the Protestant filed a supplemental submission with this office. Within its AFR, the Protestant asked that the port through which the subject merchandise was imported and the entry number at issue 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. The specified items will not be released to the public and will be withheld from the published version of this decision. FACTS: Protestant describes the garments at issue as follows: Styles 02000B and 02006-2 are woven cotton sleep pants featuring an elasticized waistband with a functional drawstring, side seam pockets, hemmed bottom and a fly front with one-button closure. Style 02000B is made with 68% cotton, 29% polyester, and 3% spandex fabric, while Style 02006-2 is made with 100% cotton flannel fabric. Style 01107D is a knit blended cotton/spandex or cotton/spandex/polyester sleep pant (depending on color) featuring an elasticized waistband with a functional drawstring, side seam pockets, ribbed knit bottoms, and a fly front with one-button closure. Style 01107D is made with 95% cotton 5% spandex knit fabric.  Samples of all three styles of the subject trousers were examined by this office. The subject merchandise covers one entry entered on November 1, 2020, as follows: (1) Styles 02000B and 02006-2 were entered under subheading 6207.91.30, HTSUS, which provides for “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of cotton: Other”; and (2) Style 01107D was entered under subheading 6107.91.00, HTSUS, which provides for “Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton.” The subject merchandise was liquidated on March 19, 2021, under the following subheadings: (1) Styles 02000B and 02006-2 were liquidated under subheading 6203.42.45, HTSUS, which provides for “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: Of cotton: Other: Other: Other”; and (2) Style 01107D was liquidated under subheading 6103.42.10, HTSUS, which provides for “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: Of cotton: Trousers, breeches and shorts.” Protestant claims that the subject merchandise should be classified under subheadings 6207.91.30, HTSUS (Styles 02000B and 02006-2), and 6107.91.00, HTSUS (Style 01107D), as entered. In support of this claim, in its September 7, 2021, protest the Protestant argued, in relevant part, as follows: The style, features, and construction of the garments at issue are identical to the sleep pants at issue in HQ 963906, issued to the Protestant on April 4, 2001. In that ruling, CBP classified the garments under consideration under subheading 6207.91.30, HTSUS. HQ 963906 described the garments as men’s woven cotton flannel trousers featuring an elasticized waistband with a functional drawstring, side seam pockets, hemmed bottoms, and a fly front with one-button closure (which does not break the waistband). The three garment styles under consideration are substantially identical to the garment at issue in HQ 963906. Styles 02000B and 02006-2 are both woven cotton trousers featuring an elasticized waistband with a functional drawstring, side seam pockets, hemmed bottoms, and a fly front with one-button closure. Style 01107D also features an elasticized waistband with a functional drawstring, side seam pockets, and a fly front with one-button closure which does not break the waistband. It differs from the garment at issue in HQ 963906 only in its knit fabric and ribbed leg bottoms. The Styles at issue are properly classified as sleepwear due to the features, design and construction of the garments, the environment of sale, and all other relevant factors demonstrating their principal use as sleepwear under applicable court decisions and Headquarters rulings. The garments at issue are designed, made, invoiced, sold, and marketed as sleepwear. Specifically, the following factors show that the garment styles at issue are sleepwear: Physical characteristics: All three of the garment styles at issue are made of lightweight fabrics, have a loose and roomy design, a drawstring waistband, side seam pockets, and feature a one-button fly front risking immodesty for the wearer due to the relatively large fly opening. In addition, all three styles are identified as sleep pants on the hangtags attached to the waistband, while also featuring a “tag free” design where the care instructions are printed inside the garment rather than on a care label attached to the waistband, to ensure that the wearer will not be irritated by the label while sleeping. Environment of sale: All three of the garment styles at issue are sold by online retailers including Walmart, under the “Sleepwear” or “Pajama” category of garments. The web pages for the retailers selling the garments at issue, as well as the garments’ retail packaging, identify them exclusively as “sleep pants” and not as loungewear.  Recognition in trade of virtually identical merchandise: Garments virtually identical to the three styles at issue are identified and advertised as sleepwear on websites such as Amazon, Target, and Kohls. Of the featured styles, of particular note are the Target Men’s Knit Jogger Pajama Pants, and the Izod Men’s Knit Jogger Sleep Pants.  These styles are similar to Style 01107D in that they feature a fly and ribbed cuff at the bottom of each leg. The fact that most major retailers market similarly styled men’s pants as sleepwear and pajama pants demonstrates that the trade recognizes these types of pants as sleepwear. Documentation Incidental to Purchase and Sale: The commercial documents accompanying the garments at issue always refer to each of the three styles as sleep pants or sleepwear.  Moreover, in its August 15, 2023, supplemental submission Protestant argued, in relevant part, as follows: The immodesty inherent in the three styles at issue demonstrates that they are essentially dedicated for use as sleepwear because the risk to modesty is too great to wear them in public. This is because, in light of the need to accommodate wearers’ night-time restroom use, all three styles were designed with particular emphasis on ease of use of the fly button: the button and buttonhole combination open relatively easily. The specific effect of the design of the fly opening is that the button fly is more likely to slip open when the wearer is seated, for example, in a chair.  Moreover, the fabrics used to manufacture the styles at issue are lightweight, which presents additional modesty issues to the wearers. However, because the three styles are sold by Exquisite into the sleepwear market, immodesty is not a concern to the buyers. As discussed in the September 7, 2021, protest, multiple factors (such as the physical characteristics of the three styles at issue, the environment of sale, recognition in the trade, and other extrinsic evidence) show that the Exquisite sleep pants are designed, made, bought, and sold as sleepwear, and that similar merchandise is recognized as sleepwear in the trade. Exquisite sells its sleepwear exclusively to the sleepwear and intimate apparel trade.  Exquisite customers primarily include mass retailers, such as Wal-Mart Stores, Inc. The Exquisite sleep pants are sold by Walmart in their sleepwear aisle.  Exquisite’s long-time packaging supplier attests to the fact that none of the packaging (hangtags, labels, etc.) which they have sold to Exquisite for its garments, has been for anything other than sleepwear and underwear products, and that there is no activewear in Exquisite’s line.  Buyers of Exquisite’s sleep pants understand that they are to be used as pajamas.  ISSUE: What is the tariff classification of the men’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. 2704-21-157569 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest was filed is inconsistent with HQ 963906, dated April 4, 2001. 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: 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 * * * 6107 Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted * * * 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 * * * Additional U.S. Rule of Interpretation (AUSR) 1(a), HTSUS, provides that: 1. In 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. * * * Note 2 (A) to Section XI, HTSUS, provides: Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material. When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration. * * * Subheading Note 2 (A) to Section XI, HTSUS, provides: Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 or of heading 5809 consisting of the same textile materials. * * * Note 7 to Section XI, which includes Chapters 50-63, provides that: For the purposes of this section, the expression “made up” means: Cut otherwise than into squares or rectangles; Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means; Cut to size and having undergone a process of drawn thread work; Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length. * * * 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). EN 1 to Chapter 61 provides as follows: This Chapter applies only to made up knitted or crocheted articles. * * * EN 1 to Chapter 62 provides as follows: This Chapter applies only to made up articles of any textile fabric other than wadding, excluding knitted or crocheted articles (other than those of heading 62.12). * * * EN 61.03, provides, in pertinent part: This heading covers only men’s or boys’ knitted or crocheted suits and ensembles, jackets, blazers, trousers, breeches and shorts (other than swimwear) and bib and brace type overalls. * * * EN 61.07, provides, in pertinent part: This heading covers two separate categories of knitted or crocheted clothing for men or boys, namely, underpants, briefs and similar articles (underclothing) and nightshirts, pyjamas, bathrobes (including beachrobes), dressing gowns and similar articles. * * * EN 62.03, provides, in pertinent part: The provisions of the Explanatory Note to heading 61.03 apply, mutatis mutandis, to the articles of this heading. * * * EN 62.07, provides, in pertinent part: This heading covers underclothing for men or boys (singlets and other vests, underpants, briefs and similar articles), not knitted or crocheted. This heading also includes hightshirts, pyjamas, bathrobes (including beachrobes), dressing gowns and similar articles for men or boys (garments usually worn indoors). It should be noted that knitted or crocheted articles of this kind are to be classified in heading 61.07 or 61.09, as the case may be. * * * To establish the appropriate heading of the subject merchandise, we first examine the meaning of the two competing terms: loungewear and sleepwear and the factors that are used to distinguish these two types of garments. The Court of International Trade (“C.I.T.”) 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 (sleeping) or for social activities (outerwear). In International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff’d International Home Textile, Inc. v. United States, 153 F.3d 1378 (Fed. Cir. 1998), the C.I.T. examined garments which were loose fitting, lightweight, and cotton, made with or without a fly. The C.I.T. determined that loungewear did not have the character of a garment used for private activity. The court further determined 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.” 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”) 082624, dated March 22, 1989. Sleepwear, by contrast, is “characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing).” International Home Textile, 21 C.I.T. at 282. The courts noted that the exemplars listed in heading 6107, HTSUS, “evoke a sense of privacy.” Id. at 282, see also, International Home Textile II, 153 F.3d at 1381 (concurring that HTSUS heading 6107 “is indeed limited to garments for private uses”). In defining “sleepwear,” the court cited several lexicographic sources, among them Webster’s Third New International Dictionary, which defined “nightclothes” as “garments to be worn to bed.” See Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F. 2d 144 (Fed. Cir. 1986). Similarly, CBP has previously noted that the fabric used for sleepwear must be lightweight and (often) translucent. See HQ 961036, dated April 27, 1998. Likewise, in St. Eve International, Inc. v. United States, 27 C.I.T. 758, 767-69, 772 (2003), the C.I.T. noted that fabric used for underwear and intimate apparel should be soft to the touch, light weight, and preferably weighing 180 grams per square meter or less. In determining whether a garment is classifiable as either loungewear or sleepwear, the courts first examine the physical characteristics of the garment. See Mast Industries, at 551 (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 (2003). However, CBP has also stated that both loungewear and sleepwear may be loose fitting, oversized and made of comfortable fabric and therefore suitable for either sleeping or leisure wear. See HQ 953001, dated January 21, 1993. Hence, the physical characteristics of the garment alone may not be determinative of its classification. Accordingly, when an examination of the garment’s physical characteristics results in a finding that the garment is so ambiguous that it is conceivable that t