H333430

HQ H333430 May 24, 2024 OT:RR:CTF:FTM H333430 BJK CATEGORY: Classification TARIFF NO.: 6104.23.00 Ms. Sally Gifford Senior Trade Compliance Analyst GEODIS America 5101 South Broad Street Philadelphia, Pennsylvania 19112 RE: Tariff Classification and Applicability of Subheading 9817.00.96, HTSUS; Women’s Pajamas Set with Features for Adaptive Use Dear Ms. Gifford: This is in response to your request, on behalf of QVC, Inc. (“QVC”), dated July 14, 2023, for a binding ruling regarding the tariff classification and duty-free eligibility under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a women’s pajamas set, which includes a garment top and garment bottom, composed of 92% polyester and 8% spandex knit jersey, and featuring elements for adaptative use. Your request and sample provided was forwarded by the National Commodity Specialist Division (“NCSD”) to this office for a response. Our ruling is set forth below. FACTS: The merchandise at issue is Style IML SB Sleep Set, which is a women’s pajama set featuring a garment top and garment bottom. The composition of both the garment top and garment bottom are 92% polyester and 8% spandex knit jersey. The garment top has a notch-collar, patch chest pocket, long sleeves, and a full front opening closed by magnets. Buttons sewn on the outside of the right front placket simulate a button-closure. The garment bottoms have a covered elastic waistband and side pockets. Three hand straps are sewn into the waistband of the garment bottoms, including one on each side and one in the center back. The requestor explains that the magnets on the garment top and hand straps on the garment bottom are design features intended for adaptive use and to make the set easier for someone with a disability to dress alone or be assisted in dressing. A sample of the set was provided by the requestor. Neither the garment top nor the garment bottom contained hangtags or other markings inside. A swatch from the garment top and garment bottom were submitted to U.S. Customs and Border Protection (“CBP”) Laboratories and Scientific Services (“CBP Lab”) for analysis. CBP Lab Reports NY20231181 (garment bottom) and NY20231182 (garment top), both dated March 6, 2024, indicated that the garment fabric is a weft knitted fabric wholly constructed of synthetic man-made yarns with a horizontal stitch count of 19 stitches per centimeter. The fabric weights for both the garment top and bottom were predominately polyester, with less than 10 percent consisting of elastomeric fibers. The garment top and garment bottom will be imported together and sold as a set exclusively on QVC’s website. QVC intends to market the set as sleepwear pajamas within the Adaptive and Accessible section of its website, which features clothing and other products for adaptive use. QVC did not specify which disability the set is designed or marketed for and did not provide additional marketing materials. On QVC’s website there is an Adaptive and Accessible section, with a subsection for Women’s Adaptive Clothing and a subsequent subsection for “Sleepwear.” The Women’s Adaptive Clothing “Sleepwear” subsection consists of an adaptive zip front lounge bra, two styles of adaptive accessible lounge joggers, and a Yarrow Maysoon Adaptive Pajama Shirt and Pajama Pants. See QVC’s Women’s Adaptive Sleepwear, https://www.qvc.com/adaptive-and-accessible/adaptive-clothing-and-shoes/women/adaptive-clothing/sleepwear/_/N-jad5j6/c.html?limit=96&ro=15j3xd2Zb6zp8qZjad5j6&navSrc=REFINE#plModule (last visited May 3, 2024). The Yarrow Maysoon Adaptive Pajama Shirt and Pajama Pants, sold separately, are advertised as an adaptive and “ultra cute (hello, pretty piping), delightfully comfy (oooh, cotton!), and pretty much an all-day lounge-sesh go-to.” See, e.g., QVC’s Women’s Adaptive Sleepwear, Yarrow Maysoon Adaptive Pajama Shirt, https://www.qvc.com/yarrow-maysoon-adaptive-pajama-pants.product.A486651.html (last visited May 3, 2024). ISSUES: What is the tariff classification of the women’s pajamas set? Is the set eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as articles specifically designed or adapted for the handicapped? LAW AND ANALYSIS: Classification Classification decisions under the HTSUS are 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 2024 HTSUS provisions under consideration are as follows: 6104 Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib or brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: 6104.23 Ensembles: 6104.23.00 Of synthetic fibers * * * 6108 Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: 6108.32 Nightdresses and pajamas: 6108.32.00 Of man-made fibers * * * Note 3 to Chapter 61, HTSUS, provides in pertinent part: For purposes of headings 6103 and 6104: . . . The term “ensemble” means a set of garments (other than suits and articles of heading 6107, 6108, or 6109), composed of several pieces made up in identical fabric, put up for retail sale, and comprising: one garment designed to cover the upper part of the body, with the exception of pullovers which may form a second upper garment in the sole context of twin sets, and of waistcoats which may also form a second upper garment, and one or two different garments, designed to cover the lower part of the body and consisting of trousers, bib and brace overalls, breeches, shorts (other than swimwear), a skirt or divided skirt. All of the components of an ensemble must be of the same fabric construction, style, color and composition; they also must be of corresponding or compatible size. The term “ensemble” does not apply to track suits or ski-suits of heading 6112. * * * The product at issue here is a women’s pajamas set featuring a garment top and garment bottom, constructed of the same fabrics (polyester and spandex knit jersey). As confirmed by the CBP Lab in Reports NY20231181 and NY 20231182, dated March 6, 2024, the garment top and bottom consist of the same fabric with the same stitching and weights. The garment top features magnets that allow for easier opening and closing, with buttons sewn on the right front placket to give the appearance of button-closure. The garment bottoms feature three hand straps along the garment bottom waist (one on each side and one on the back) intended to facilitate the dressing and undressing of the individual wearing it. QVC has indicated that the garment top and garment bottoms will be sold as a set and marketed and sold as sleepwear pajamas on its website. At the outset, CBP must determine whether the set is classifiable as an outerwear ensemble (i.e., loungewear) under heading 6104, HTSUS, or as sleepwear under heading 6108, HTSUS. The Court of International Trade (“CIT”) determined that a garment’s primary use for a private activity (i.e., sleeping) to be instructive in classifying a garment as pajamas under heading 6108, HTSUS. See 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). Sleepwear is “characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing). Id. Conversely, garments constructed, designed, and marketed in a manner that would allow it to be worn at informal social occasions in and around the home reflect more of a “loungewear” designation. Thus, in considering 

Classification Classification decisions under the HTSUS are 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 2024 HTSUS provisions under consideration are as follows:6104 Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib or brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: 6104.23 Ensembles: 6104.23.00 Of synthetic fibers* * *6108 Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: 6108.32 Nightdresses and pajamas:6108.32.00 Of man-made fibers* * * Note 3 to Chapter 61, HTSUS, provides in pertinent part:For purposes of headings 6103 and 6104:. . . The term “ensemble” means a set of garments (other than suits and articles of heading 6107, 6108, or 6109), composed of several pieces made up in identical fabric, put up for retail sale, and comprising: one garment designed to cover the upper part of the body, with the exception of pullovers which may form a second upper garment in the sole context of twin sets, and of waistcoats which may also form a second upper garment, and one or two different garments, designed to cover the lower part of the body and consisting of trousers, bib and brace overalls, breeches, shorts (other than swimwear), a skirt or divided skirt. All of the components of an ensemble must be of the same fabric construction, style, color and composition; they also must be of corresponding or compatible size. The term “ensemble” does not apply to track suits or sk