H305865

HQ H305865 July 12, 2021 OT:RR:CTF:FTM H305865 TSM CATEGORY: Classification TARIFF NO.: 6109.10.00 Ms. Moncy Nabors J.C. Penney Purchasing Corporation 6501 Legacy Dr., MS 4202 Plano, TX 75024 RE: Affirmation of NY N305595; The tariff classification of men’s upper body garments Dear Ms. Nabors: This is in response to your October 1, 2019 letter, on behalf of J.C. Penney Purchasing Corporation (“JCPPC”), requesting reconsideration of New York Ruling Letter (“NY”) N305595, dated August 20, 2019. In NY N305595, U.S. Customs and Border Protection (“CBP”) classified certain men’s upper body garments under subheading 6109.10.00, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton.” We affirm NY N305595 because the garments at issue are not characterized by a sense of privacy as is typical of sleepwear. NY N305595 described the items at issue as follows: Style 173857 is a men’s T-shirt constructed from 60% cotton, 40% polyester, jersey knit fabric that weigh 185 grams per square meter. Style 173857 features a rib knit crew neckline, short, hemmed sleeves, a patch pocket on the left chest, and a straight, hemmed bottom. Style 169912 is a men’s upper body garment constructed from 60% cotton, 40% polyester, jersey knit fabric that weigh 185 grams per square meter. Style 169912 features a rib knit crew neckline, long, hemmed sleeves, a patch pocket on the left chest, and a straight, hemmed bottom. In your request for reconsideration, you argue that the garments at issue are classified 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.” Specifically, you claim as follows: Although in NY N305595 CBP stated that “there is nothing about the styling, fabric, cut or construction of these garments which indicate that they were designed primarily for wear to bed” and that “their principal use is for ‘home comfort’ and lounging,” JCPPC design team has made an effort to design the sleep teas with a more generous fit for a comfortable sleepwear design. JCPPC will be marketing and advertising the garments at issue as sleepwear separates, both online and in stores. Specifically, these garments will be marketed as sleep tees and pajama tops, which indicates that they are intended to be worn for sleeping. The emergence of online advertising and digital media has created a platform for advertising men’s separate sleep tops in recent years. Prior CBP rulings have classified garments as sleepwear based on the marketing information provided, even though their appearance was described as “ambiguous.” Specifically, at issue are the following rulings: NY N267223, NY N290788, NY N264813, NY N235583, NY N182561, NY N107063, NY N083625, NY N084680, NY N043195, NY N038654, and NY N038651. In support of your arguments, you filed several exhibits containing printouts showing that the garments at issue are marketed and sold as pajama tops online and in men’s underwear department of a store. You also filed an image showing that the garments at issue are designed with a more generous fit, alleging that the generous fit is a “comfortable sleepwear design.” 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.). Therefore, in classification of garments, merchandise itself may be strong evidence of its use. Mast Indus., Inc. v. United States, 9 Ct. Int'l Trade 549, 552 (U.S. 1985). 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. Furthermore, in a June 2008 Informed Compliance Publication (“ICP”), entitled “Classification: Apparel Terminology under the HTSUS,” CBP provided, in relevant part, the guidelines for classification of sleepwear. Specifically, CBP found that 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, other factors such as environment of sale, advertising and marketing, and recognition in the trade of virtually identical merchandise, are considered. In such cases, the manner in which an article is sold and marketed is weighed in conjunction with the physical characteristics of the garment. With regard to the manner in which merchandise is marketed and sold, CBP also noted that intimate apparel or sleepwear departments often sell a variety of merchandise besides sleepwear and intimate apparel, including garments intended to be worn as outerwear. Concerning the physical characteristics of sleepwear, CBP found that it is characterized by a sense of privateness or private activity, while 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 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. Such garments are not classified in the sleepwear headings, but in specific headings for the named articles. Similarly, garments that are marketed as having multiple uses, one of which may be sleeping, are also classified in the specific headings for the named articles and not as sleepwear. With regard to the physical characteristics of the garments under conside

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.). Therefore, in classification of garments, merchandise itself may be strong evidence of its use. Mast Indus., Inc. v. United States, 9 Ct. Int'l Trade 549, 552 (U.S. 1985). 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. Furthermore, in a June 2008 Informed Compliance Publication (“ICP”), entitled “Classification: Apparel Terminology under the HTSUS,” CBP provided, in relevant part, the guidelines for classification of sleepwear. Specifically, CBP found that in determining whether a particular garmen