H312047

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H312047 January 31, 2022 OT:RR:CTF:FTM HQ H312047 MJD CATEGORY: Classification TARIFF NO.: 6203.43.90; 6205.30.20 Center Director Apparel, Footwear & Textiles CEE U.S. Customs and Border Protection 555 Battery Street, Room 401 San Francisco, CA 94111 Attn: Grace Carmichael, Senior Import Specialist; Angela Hultz, Supervisory Import Specialist Re: Application for Further Review of Protest No. 1303-20-102061; Tariff classification of men’s and boys’ garments. Dear Center Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1303-20-102061, timely filed on June 17, 2020, on behalf of Intralin Corporation (“Protestant”), contesting U.S. Customs and Border Protection (“CBP”) classification of men’s and boys’ garments under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The merchandise at issue consists of men’s and boys’ tops and bottoms made of 65% polyester and 35% cotton woven fabric. Protestant describes the garments as “pajama tops” and “pajama bottoms.” Style numbers 107523, 107524, and 107519 cover the tops, and style numbers 107517 and 107518 cover the bottoms. The tops and bottoms are not imported as sets, but rather as separate bulk orders in unequal quantities, and come in various colors. The tops feature a v-styled neckline, a full front opening with three left-over-right snap closures, long hemmed sleeves, a patch pocket on the left chest, and a straight hemmed bottom. The bottoms are pull-on style and feature an elastic waistband, no open fly, and hemmed leg openings. The imported garments are sold to the wholesaler and sole customer of Protestant’s and are then resold to a cooperative association that provides laundry and linen services to hospitals in the greater Rochester, New York area. The garments are made to certain specifications and are solely used for patients in hospitals. The subject merchandise was entered under subheading 6207.99.8510, HTSUSA (“Annotated”), which provides for “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of other textile materials: Of man-made fibers: Other: Sleepwear.” CBP reclassified the bottoms under subheading 6203.43.9010, HTSUSA, 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 synthetic fibers: Other: Other: Other: Other: Other: Other: Trousers and breeches: Men’s.” The tops were also reclassified, but under subheading 6205.30.2070, HTSUSA, which provides for “Men’s or boys’ shirts: Of man-made fibers: Other: Other: Other: Other: Men’s.” ISSUE: What is the tariff classification of the men’s and boys’ 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. 1303-20-102061 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 New York Ruling Letter (“NY”) J80754, dated March 4, 2003; NY N162597, dated May 26, 2011; and Headquarters Ruling Letter (“HQ”) 967039, dated September 10, 2004. Classification of goods under the HTSUS is made 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 2019 HTSUS provisions under consideration 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): * * * 6205 Men’s or boys’ shirts: * * * 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: In the absence of special language or context which otherwise requires-- 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. * * * Protestant asserts that the subject merchandise should be classified as sleepwear under subheading 6207.99.8510, HTSUSA, which provides for “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of other textile materials: Of man-made fibers: Other: Sleepwear.” The Court of International Trade has addressed the classification of sleepwear in several cases and has established several factors to determine whether or not a garment is sleepwear. 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 in that case 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, 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 HQ 967185, dated October 8, 2004; 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.). See also Inner Secrets, 19 C.I.T. at 505-06. Factors to be considered include: the general physical characteristics of the merchandise, the expectations of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of the sale and the manner in which the merchandise is advertised and displayed, the use in the same manner as merchandise which defines the class, the recognition in the trade of this use, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. See St. Eve

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. 1303-20-102061 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 New York Ruling Letter (“NY”) J80754, dated March 4, 2003; NY N162597, dated May 26, 2011; and Headquarters Ruling Letter (“HQ”) 967039, dated September 10, 2004.Classification of goods under the HTSUS is made 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 2019 HTSUS provisions under consideration 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):* * *6205 Men’s or boys’ shirts: * * *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: In the absence of special language or context which otherwise requires-- 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