H323156

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H323156 March 1, 2022 OT:RR:CTF:FTM H323156 JER CATEGORY: Classification TARIFF NO.: 6107.91 Center Director Apparel, Footwear & Textiles CEE U.S. Customs and Border Protection 40 South Gay Street, Room 120 Baltimore, MD 21202 Attn: Susan Coleman, Supervisory Import Specialist RE: Application for Further Review of Protest No. 5301-21-107666; Tariff Classification of Men’s Pants Dear Center Director: This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5301-21-107666, timely filed on September 30, 2021, by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, on behalf of Bioworld Merchandising Inc. (“Bioworld” also referred to herein as “Protestant”), concerning the classification of certain men’s pants described as sleep pants, under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The subject merchandise was initially entered on or about August 10, 2020, under heading 6107, HTSUS, as sleepwear. However, U.S. Customs & Border Protection (“CBP”) liquidated the merchandise under heading 6103, HTSUS, as outerwear (or loungewear). The merchandise at issue is Style No. BLZPMNSWB, which is a men’s pants like garment. Protestant describes the merchandise as being 60 percent cotton/40 percent polyester blended knit fabric, with a weight of 140 grams per square feet (“GSM”). It has a tunnel elastic waistband, a drawstring, single button/fly closure, hemmed leg openings, and side pockets. Protestant states that the fabric is light weight and partially translucent, meaning it is partially see-through when the garment is held up to the light. In its submission, Bioworld provided a sample of the subject merchandise, garments specification and internal attributes spreadsheet, chart and photos of Bioworld Men’s sleep pants with style and item numbers, purchase order from a retail chain, purchase orders sent to the manufacturer, and commercial invoices and packing lists. Among the documents submitted, Protestant provided a Product Key which identifies the attributes of Style No. BLZPMNSWB and reads as follows: BL (Blanks), ZP (Sleep Pants), MN (Men’s), SW (Sleepwear Fabric), B (Black). One of the documents provided also indicates the attributes for the subject garment and other Bioworld “sleepwear” pants. ISSUE: Whether the imported men’s pants are classified as loungewear (outerwear) under heading 6103, HTSUS, or as sleepwear under heading 6107, HTSUS. 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 on or about September 30, 2021, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 5301-21-107666 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Classification 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 2020 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 of crocheted: 6103.42 Of cotton: 6103.42.10 Trousers, breeches and shorts… Trousers and breeches: 6103.42.1020 Men’s * * * 6107 Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns, and similar articles, knitted or crocheted: Nightshirts and pajamas: Of cotton… * * * Other: 6107.91.00 Of cotton… Sleepwear 6107.99 Of other textile materials… * * * At issue is whether Style No. BLZPMNSWB, is classified as outerwear (i.e., loungewear or leisure wear) in heading 6103, HTSUS, or under heading 6107, HTSUS, as sleepwear. Heading 6103, HTSUS, provides in relevant part for, “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted of crocheted.” By contrast, heading 6107, HTSUS provides for, “Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns, and similar articles, knitted or crocheted.” Protestant argues that classification of this merchandise under heading 6103, HTSUS, is inconsistent with prior rulings on substantially similar garments. In support of its argument, Protestant lists several CBP rulings and cites to multiple court decisions which address the classification of sleepwear and outerwear. 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, a

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 on or about September 30, 2021, within 180 days of liquidation. 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 5301-21-107666 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to be inconsistent with matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Classification 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 2020 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 of crocheted: 6103.42 Of cotton: 6103.42.10 Trousers, breeches and shorts… Trousers and breeches:6103.42.1020 Men’s* * *6107 Men’s or boys’ underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns, and similar articles, knitted or crocheted: Nightshirts and pajamas: Of cotton…* * *Other:6107.91.00 Of cotton… Sleepwear6107.99 Of other textile materials… * * *At issue is whether Style No. BLZPMNSWB, is classified as outerwear (i.e., loungewear or leisure wear) in heading 6103, HTSUS, or under heading 6107, HTSUS, as sleepwear. Heading 6103, HTSUS, provides in relevant part for, “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted of crocheted.” By contrast, he