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HQ 951032


May 7, 1992

CLA-2 CO:R:C:T 951032 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6103.42.1020; 6103.42.1050; 6105.10.0010; 6110.20.2065; 6114.20.0055

Mr. Robert E. Murphy
Vice President Operations
Host Apparel, Inc.
1359 Broadway
New York, New York 10018-7196

RE: Classification of Five Samples; Sleepwear vs. Outerwear; Shirts; Trousers; Shorts; Pullovers; and One-Piece Garments

Dear Mr. Murphy:

This is in reply to your letter of January 3, 1992, concerning the classification of five submitted garments. Our ruling on the matter follows.

FACTS:

Each of the submitted samples contain the label "COLOURS by ALEXANDER JULIAN".

Style A003 is a man's upper body garment which is constructed from 100 percent cotton, finely knit jersey fabric containing 12 stitches per linear centimeter in the horizontal direction and 14 stitches per linear centimeter in the vertical direction. It has short set-in sleeves with rib knit cuffs; a partial front opening secured with a single button; a rib knit neckband; contrasting colored front and rear yokes; an embroidered logo on the left chest; a hanger loop at the rear neckline; and a hemmed bottom with side slits and a tail.

Style A005 is a man's pair of pants constructed from 100 percent finely knit jersey fabric. The garment has a fully elasticized tunnel waistband with an interior drawstring; side seam pockets of contrasting colored fabric; a rear patch pocket with an embroidered logo; a hanger loop at the center rear near the waistband; and rib knit cuffs.

Style A006 is a man's pair of shorts constructed from 100 percent cotton finely knit jersey fabric. The garment has a fully elasticized tunnel waistband with an interior drawstring; side seam pockets of contrasting colored fabric; a rear patch pocket with an embroidered logo; a hanger loop at the center rear near the waistband; and hemmed leg openings. A strip of contrasting colored knit fabric, approximately two inches wide is sewn to the bottom of each leg opening giving the garment a layered appearance.

Style A008 is a man's one piece garment which is made from 100 percent cotton finely knit jersey fabric. The upper portion resembles an athletic tank top while the bottom portion is constructed in the manner of shorts. It has shoulder straps which measure 1-1/2 inches wide at the shoulder seam; oversized armholes; a low rounded front neckline; a rear neckline which reaches below the nape of the neck; contrasting colored fabric capping at the neckline and armhole openings; hemmed legs; a hanger loop at the center rear neckline; and a patch pocket on the rear right side near the hip.

Style A009 is a man's pullover garment which is constructed from 100 percent cotton finely knit jersey fabric. It has long sleeves with rib knit cuffs; a rib knit waistband; a front pocket at the waist, approximately 20 inches wide and 7-1/2 inches high, with two side openings; a hood with a contrasting colored lining; a hanger loop at the center rear neckline; and an embroidered logo on the left chest.

The importer states:

[it] and its subsidiaries have been for over 30 years a manufacturer and importer of Sleepwear (Robes, Pajamas & Loungewear). We do not sell any other commodities. We are a major source for the Retail Industry and as such sell exclusively to Sleepwear Departments.

ISSUE:

The issue presented is whether the samples belong to a class of garments which are primarily used for sleeping, and, therefore, are classifiable as nightwear.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes.

Heading 6107, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), provides for men's knit nightshirts, pajamas, and similar articles.

In classifying sleepwear, Customs follows court decisions and long standing classification practices in its interpretation of which garments are classifiable as sleepwear (or nightwear). In Mast Industries v. United States, 9 CIT 549, aff'd 786 F.2d 1144 (1986), the court stated that the definition of nightclothes was "garments worn to bed".

In addition, Customs Textile and Apparel Category Guidelines, 53 F.R. 52564, CIE 13/88 (1988), state that "nightwear" means sleepwear, so that garments worn to bed in the day time are included under that designation. It also states that "Other nightwear" includes various articles worn for sleeping, but does not include negligees, bed jackets, sleep coats, or other apparel designed to be worn over sleepwear.

Accordingly, since the importer sells, in addition to pajamas, robes and loungewear, it cannot be said that the importer deals exclusively in sleepwear apparel.

Our National Import Specialist has reported:

After examining the garments in question, we find that there is nothing about the styling, fabric, cut, or construction of these garments which indicate that they were designed primarily for wear to bed. Rather, the garments are designed and constructed in the manner and style of knit sportswear. We believe that these garments are part of the relatively new men's loungewear trade where the garments are designed for comfortable wear in and around the home. Garments of this type are multi-purpose garments rather than garments designed primarily to be worn to bed for sleeping.

HOLDING:

Style A003, while capable of being slept in, clearly belongs to a class of garments commonly worn as, and commercially known as, shirts. Accordingly, it is classifiable under the provision for men's knit cotton shirts, in subheading 6105.10.0010, HTSUSA, with duty at the rate of 21 percent ad valorem. The applicable textile category number is 338.

Style A005 more resembles warm-up style trousers than sleepwear and is classifiable under the provision for men's knit cotton trousers, in subheading 6103.42.1020, HTSUSA, with duty at the rate of 17.1 percent ad valorem. The applicable textile category number is 347.

Style A006 is a pair of shorts used for lounging or other activities around the home. It is classifiable under the provision for men's knit cottons shorts, in subheading 6103.42.1050, HTSUSA, with duty at the rate of 17.1 percent ad valorem. The applicable textile category number is 347.

Style A008, a one-piece garment that covers both the upper and lower torso, also appears to be a garment that would be primarily used for lounging rather than sleeping. Since it is not more specifically provided for, it is classifiable under the provision for other men's or boys' knit cotton garments, in subheading 6114.20.0055, HTSUSA, with duty at the rate of 11.5 percent ad valorem. The applicable textile category number is 359.

Style A009, with its hood, rib knit cuffs and waistband, and large front pocket, more closely resembles a sweatshirt than it does a garment designed for sleeping. However, since it is not made of material commonly associated with sweatshirts, it is not classifiable as a sweatshirt, but rather as an other men's or boys' pullover, similar to a sweatshirt, in subheading 6110.20.2065, HTSUSA, with duty at the rate of 20.7 percent ad valorem. The applicable textile category number is 338.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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