H320211

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H320211 October 29, 2021 OT:RR:CTF:FTM H320211 MD CATEGORY: Classification TARIFF NO.: 6103.42.10; 6110.20.20; 6110.30.30 Ms. Margaret Panayiotou 1 Lincoln Boulevard, Suite 202 Rouses Point, New York 12979 RE: Affirmation of NY N318604; Men’s Trousers from Pakistan and Men’s Upper Body Garments from Bangladesh Dear Ms. Panayiotou: This is in response to your request, dated August 18, 2021, for reconsideration of New York Ruling Letter (“NY”) N318604, issued to you on April 12, 2021. In that ruling, U.S. Customs and Border Protection (“CBP”) classified men’s trousers from Pakistan and men’s upper body garments from Bangladesh under the Harmonized Tariff Schedule of the United States (“HTSUS”). Specifically, CBP classified the men’s trousers under subheading 6103.42.1020, HTSUS Annotated (“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), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of cotton: Trousers, breeches and shorts: Trousers and breeches: Men’s.” CBP classified the men’s upper body garments from Bangladesh under subheadings 6110.20.2069, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of Cotton: Other: Other: Other: Men’s or boys’: Other,” and 6110.30.3053, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Other: Men’s or boys’: Other.” We have reviewed NY N318604, determined that it is correct, and for the reasons set forth below, are affirming that ruling. NY N318604 described the subject merchandise as follows: Style FM7421B is a pair of men’s trousers constructed from 60% cotton and 40% polyester knit fabric that is brushed on its inside surface. Style FM7421B features an elasticized rib knit waistband with an outside drawstring, a fly front opening with a one-button closure that is covered with a placket, inset pockets at the waist, a patch pocket on the upper right back panel, a logo on the lower outer left leg, and leg openings with rib knit bottoms. Style FM7698 is a men’s pullover constructed from 100% cotton slub jersey knit fabric that measures 30 stitches per two centimeters in the direction the stitches are formed. Style FM7698 features a rib knit crew neckline, shot hemmed sleeves, a printed logo on the center chest, a narrow woven fabric strip sewn into the center rear neckline, and a straight, hemmed bottom with side seam slits. Narrow woven strips with printed logos are sewn along each side of these slits. Style FM7722 is a men’s pullover constructed from 95% polyester, 5% spandex knit fabric that measures 35 stitches per two centimeters in the direction the stitches are formed. Style FM7722 is sleeveless and features a round front neckline, a straight rear neckline that does not fall below the nape of the neck, oversized armholes with shoulder straps that measure approximately 3 inches in width, self-fabric capping at the neckline and armholes, narrow woven fabric strips with printed logos sewn along the top of each shoulder strap, a narrow woven fabric strip sewn into the inner rear neckline, a printed logo at the lower left side of the garment, and a straight, hemmed bottom. In your request for reconsideration, you contend that the subject merchandise should be classified under heading 6107, HTSUS, as sleepwear articles. Specifically, you assert that the construction of the subject merchandise precludes its classification as a form of loungewear. Additionally, you note that the subject merchandise possesses retail labels and marketing materials which promote the articles as sleepwear items. Lastly, you point to a recent CBP ruling – NY N318698, dated April 27, 2021– in which women’s garments were classified as sleepwear. In the classification of garments determined to be sleepwear, CBP considers factors discussed in several decisions by the Court of International Trade (“CIT”). In Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F.2d 1144 (Fed. Cir. 1986), the CIT cited several lexical sources, such as Webster’s Third New International Dictionary, which defined “nightclothes” as “garments to be worn to bed.” Alongside this definition, the court examined the garment, witness testimony, and other evidence concerning the marketing of the garment, before concluding that the garment at-issue in the court case was designed, manufactured, and used as nightwear and was properly classifiable as such. Similarly, 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. This approach continued in Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-506 (1995), where the court made its determination based on an examination of the merchandise followed by an analysis of witness testimony and marketing/advertising materials. When determining the classification of imported garments, an analysis of the physical characteristics of the article is required; if the article is ambiguous in design and not clearly recognizable, an analysis of extrinsic evidence – such as marketing materials – is permitted. See Headquarters Ruling Letter (“HQ”) 967185, dated October 8, 2004 (outlining that CBP’s policy is to carefully examine the physical characteristics of garments at-issue; to be supplemented with a consideration of extrinsic evidence when necessary); HQ 962021, dated September 19, 2001 (stating that when a garment is not clearly recognizable as either underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc.). As such, when classifying garments, the merchandise itself may act as strong evidence of its use. Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F.2d 1144 (Fed. Cir. 1986). Garments considered “night clothes” or “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). Therefore, this means that they are worn in private situations, such as when alone in one’s home or in the company of only intimate friends and close family. Further, in a June 2008 Informed Compliance Publication (“ICP”), titled “Classification: Apparel Terminology under the HTSUS,” CBP provided guidelines for the classification of sleepwear. Specifically, CBP indicated that a garment itself may serve as strong evidence of its use on the basis of its appearance, construction, etc. However, when presented with a garment that is not clearly recognizable as sleepwear, the consideration of other factors, such as environment of sale, advertising and marketing, and recognition in the trade of virtually identical merchandise, is encouraged. In such cases, an analysis into the manner in which the garment is sold and marketed supplements the information gathered from an examination of the garment. Regarding the manner in which merchandise is marketed and sold, CBP noted that sleepwear departments often sell as variety of merchandise besides sleepwear, including but not limited to, garments intended to be worn as outerwear. Whereas CBP considered sleepwear to have physical characteristics indicative or privateness or private activity, “loungewear” or “leisurewear” are simply loose, comfortable clothes, which could be worn in a variety of settings both in and around the home. C

of how the garment was advertised and marketed, and an examination of the garment itself. This approach continued in Inner Secrets/Secretly Yours, Inc. v. United States, 19 C.I.T. 496, 505-506 (1995), where the court made its determination based on an examination of the merchandise followed by an analysis of witness testimony and marketing/advertising materials.When determining the classification of imported garments, an analysis of the physical characteristics of the article is required; if the article is ambiguous in design and not clearly recognizable, an analysis of extrinsic evidence – such as marketing materials – is permitted. See Headquarters Ruling Letter (“HQ”) 967185, dated October 8, 2004 (outlining that CBP’s policy is to carefully examine the physical characteristics of garments at-issue; to be supplemented with a consideration of extrinsic evidence when necessary); HQ 962021, dated September 19, 2001 (stating that when a garment is not clearly recognizable as either underwear or outerwear, CBP will consider other factors such as advertising, marketing, invoices, etc.). As such, when classifying garments, the merchandise itself may act as strong evidence of its use. Mast Industries, Inc. v. United States, 9 C.I.T. 549, 552 (1985), aff’d 786 F.2d 1144 (Fed. Cir. 1986). Garments considered “night clothes” or “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). Therefore, this means that they are worn in private situations, such as when alone in one’s home or in the company of only intimate friends and close family. Further, in a June 2008 Informed Compliance Publication (“ICP”), titled “Classification: Apparel Terminology under the HTSUS,” CBP provided guidelines for the classification of sleepwear. Specifically, CBP indicated that a garment itself may serve as strong evidence of its use on the