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HQ 081954


April 12, 1988

CLA-2 CO:R:C:G 081954 CMR 828341

CATEGORY: CLASSIFICATION

TARIFF NO.: 384.8634; 6108.32.0010

Jayne A. Czik, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Tariff classification of a women's knit garment and matching drawstring bag

Dear Ms. Czik:

This is in response to your letter of February 12, 1988, on behalf of your client A.J. Schneierson International requesting a ruling on the classification of a women's knit garment manufactured in Taiwan.

FACTS:

The merchandise at issue, style number 6510, is a women's short sleeve garment made from a finely knit fabric of 65% polyester and 35% cotton. (The submitted sample, however, is 100% polyester.) The garment is oversized and will be imported in sizes small, medium, and large. It has a rib-knit, crew neckline; very short straight sleeves with hemmed edges; a straight, hemmed bottom; and a silk-screened logo, with the words, "THE SLEEP SACK", on the upper-left side at the chest. The garment is sold in a knit drawstring bag which also has the silk-screened logo on it along with information about the fiber content, country of origin, and washing instructions. The bag is made from the same material as the garment and matches it in color. Both you and our National Import Specialist agree that the matching drawstring bag is classified under item 706.4135, Tariff Schedules of the United States Annotated (TSUSA). However, we disagree.

ISSUE:

Whether the sample garment should be classified as a women's shirt under item 384.8045, TSUSA, or as sleepwear under item 384.8634, TSUSA, and what is the proper classification of the matching bag.

LAW AND ANALYSIS:

In Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), the court noted the definition of "nightwear" as "garments to be worn to bed" and a "nightshirt" as "a nightgown resembling a shirt." The court held that the particular garment at issue was classifiable as nightwear since it was designed, manufactured, marketed and used as nightwear.

Although the garment at issue here resembles a women's oversized shirt, it is asserted by you that it is intended for use as nightwear. You state in the ruling request that this garment "has been designed, ordered and will be sold as nightwear." It will be sold in sleepwear specialty stores and in the sleepwear departments of various retailers. Customer orders were submitted as evidence that the garment is being bought for sale as sleepwear, and a page from the subject company's catalog was submitted to demonstrate that the item is being marketed as sleepwear.

The court in Mast Industries, Inc., supra, at 552 noted that "the merchandise itself may be strong evidence of use." United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The garment is designed to be loose-fitting and has a logo on the front which identifies it as "THE SLEEP SACK". You contend that the logo limits use of the garment to sleepwear and will most likely preclude its use as sportswear. The presence of the logo conspicuously on the front of the garment, the marketing of the garment as nightwear and its sale in sleepwear departments leads us to agree with you that it will be used as nightwear. We acknowledge "that most consumers tend to purchase and use a garment in the manner in which it is marketed." Mast Industries, Inc., supra, at 551.

We agree with you that the subject garment is classifiable as nightwear since it is designed, manufactured, marketed and sold for use as nightwear.

As stated above, you and our National Import Specialist agree that the matching bag is classifiable as luggage under item 706.4135, TSUSA. We disagree, and believe the bag is classifiable as a container under General Headnote 6(b)(i). The relevant portions of 6(b)(i) provide:

(b) Not Imported Empty: Containers or holders if imported containing or holding articles are subject to tariff treatment as follows:

(i) The usual or ordinary types of shipping or transportation containers or holders, if not designed for, or capable of, reuse, and containers of usual type ordinarily sold at retail with their contents, are not subject to treatment as imported articles. Their cost, however, is, under section 402 of the tariff act, a part of the value of their contents and if their contents are subject to an ad valorem rate of duty such containers or holders are, in effect, dutiable at the same rate as their contents, * * *.

In a previous ruling, Ruling Letter 072762 of July 25, 1984, we stated that determination of whether retail containers are usual or unusual must be done on a case-by-case basis utilizing five factors.

1) Conventionality of the container
2) Relationship of the contents to the container 3) The cost relationship of the contents to the container 4) Whether the container serves a useful purpose with respect to the contents
5) Whether the container by its design has no useful life after its contents are consumed and is apt to be discarded

The language in 6(b)(i) which governs the classification of this bag is: "containers of usual types ordinarily sold at retail with their contents." In this case, the garment is imported in the matching bag. The bag is of the same material and the same color as the nightwear. It has the same logo along with information pertaining to the care of the nightwear. It is very clearly closely related to its contents (the nightwear). Since the bag prominently displays information about the nightwear, along with the logo and a drawing of the nightwear on its exterior surface, it appears to be the type of container that would normally be sold with its contents at retail, and not separately. Since the bag is so closely related to its contents, its value is likewise related. As a bag alone, it does have some value; however, the value of the thing sold is the contents and not the bag. As to whether the bag serves a useful purpose, we believe it does. It provides pertinent information about the nightwear within it; a convenient means of packaging; and a creative inducement to purchase. Granted the consumer may use the bag for other purposes than storing the garment after the initial purchase, but such uses are merely fugitive. For these reasons, we believe it to be the usual type of container that is normally sold at retail with its contents within the meaning of

Under the proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the bag is classifiable in the same manner and for the above stated reasons. The applicable General Rule of Interpretation in the HTSUSA is GRI 5. Its pertinent parts are as follows:

(a) Camera cases, musical instruments cases, gun cases, drawing instrument cases, necklace cases, and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long- term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. The rule does not, however, apply to containers which give the whole its essential character.

The bag is designed specifically for the nightwear it contains and has a durability comparable to it since the bag is made of the same material. It is presented with the nightwear, and for the reasons stated above, is of a kind normally sold with its contents. Lastly, it does not affect the essential character of the nightwear it contains. See Explanatory Notes, Harmonized System, General Rules of Interpretation, page 6.

HOLDING:

The garment and bag are classifiable under item 384.8634, TSUSA, textile category 651, other women's, girls', or infants' wearing apparel, not ornamented, of man-made fibers, knit, pajamas and other nightwear. The rate of duty is 17 percent ad valorem.

Under the proposed HTSUSA, the garment and bag are classifiable under subheading 6108.32.0010, textile category 651, a provision including women's nightdresses and pajamas of man- made fibers, knitted or crocheted. The rate of duty is 17 percent ad valorem.

The classifications given above under the proposed HTSUSA represent the present position of the Customs Service. If there are changes before enactment, this advice may not continue to be applicable.

Sincerely,

John Durant

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