United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0951627 - HQ 0951789 > HQ 0951776

Previous Ruling Next Ruling


HQ 951776


October 1, 1992

CLA-2 CO:R:C:T 951776 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6108.31.0010

Alan Klestadt, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Classification of certain women's knit top and bottoms sets; pajamas (sleepwear) v. sportswear; 6108, HTSUSA, v. 6104, HTSUSA (ensembles)

Dear Mr. Klestadt:

This ruling is in response to your submission of May 1, 1992, on behalf of Mast Industries (Far East) Limited, regarding the classification of three styles of women's knit top and bottoms sets. The garments will be imported from Hong Kong. Samples were received by this office with your submission.

FACTS:

Style VCK-412 consists of a 100 percent cotton rib knit pullover and matching rib knit shorts. The pullover features a scoop neckline with fine rib knit capping, fitted 3/4 length capped sleeves and a straight, capped bottom. The matching shorts feature an elasticized, self-fabric waistband and hemmed bottoms.

Style VCK-316 consists of a 100 percent cotton knit pullover and matching shorts. The pullover has a scoop neckline with a small ribbon bow at the bottom of the scoop neckline, short sleeves and a straight hemmed bottom. The matching shorts feature an elasticized self-fabric waistband, rounded bottoms and a small ribbon bow at the center front.

Style C-4007A consists of a 100 percent cotton knit pullover and matching shorts. The pullover is an oversized T-shirt style garment with oversized short sleeves. The garment features the

"Cacique" logo printed in a floral/paisley circle on the front. The matching boxer-style shorts feature a 1-3/4 inch elasticized self-fabric waistband and slightly flared leg openings with 2- 1/2 inch side slits.

The fabrics used to manufacture the above styles are all soft to the touch and fairly lightweight. Styles VCK-316 and VCK-412 are being produced on behalf of Victoria's Secret Catalogue. Style C-4007A is being produced on behalf of Lingerie Cacique.

In the submission, it is asserted that the garments at issue are designed, marketed and sold as women's sleepwear. In support of this claim, advertising galley proofs for Victoria's Secret Catalogue's "Summer Pleasures '92" catalogue for styles VCK-316 and VCK-412 have been submitted. Style VCK-412 is shown worn by a model and described in the copy as follows:

Essence of comfort: the relaxed boxer pyjama set, in soft variegated ribbed cotton knit. Boxy top has three-quarter sleeves, bottoms have an elasticized waist and a full, easy shape. * * * S,M,L. Ribbed Pyjama Set, * * *.

Style VCK-316 is shown worn by a model and described in the copy as follows:

Summer dream: the cotton knit boxer pyjama set with a tiny rosebud print on white (99). Bow-trimmed short sleeve top; short, elasticized bottom. * * *

Copies of purchase orders, production orders and garment specification sheets, all of which identify styles VCK-412 and VCK-316 as pajamas or sleepwear, have been submitted.

As to style C-4007A, a purchase order, production order and specification sheet, all identifying style C-4007A as pajamas, have been submitted. Additionally, it is asserted that Lingerie Cacique, which will sell style C-4007A, only sells lingerie and intimate apparel.

ISSUE:

Are the submitted garments classifiable as pajamas of heading 6108, HTSUSA, or as outerwear ensembles of heading 6104, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

When determining the classification of a garment, the most persuasive evidence is the garment itself. The court in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), 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). Additionally in Mast, supra, at 552, the court noted the definition of "nightwear" as "garments to be worn to bed." The court held that the particular garment at issue therein was classifiable as nightwear since it was designed, manufactured, marketed and used as nightwear.

In the case of the garments at issue, each style is constructed of soft, knit cotton fabric. The garments are designed for comfort. Nothing about the design or construction of the garments would preclude their use as sleepwear pajamas. However, it could also be argued that nothing about the design or construction limits their use to that of sleepwear pajamas. In other words, these garments are susceptible to uses other than as sleepwear, i.e., outerwear shorts and tops.

Since an examination of the garments does not lead to a incontrovertible conclusion that they are sleepwear pajamas, Customs will look to the additional information which has been submitted. In that regard, in HRL 950503 of June 19, 1992, Customs stated:

[It] should be noted that Customs recognizes that internal documentation and descriptions on invoices may be self- serving and should be considered in totality with other evidentiary information. Indeed, the Court of International Trade in ruling on the classification of certain garments known as "leggings" noted: "The court is not highly persuaded by plaintiffs invoices or advertising calling the items 'tights.' To avoid pants quota limitations plaintiff must refer to the items as 'tights.'" Regaliti Inc. v. United States, Slip-Op. 92-80, at 5. Therefore, while Customs will recognize and consider the descriptions on internal documents and invoices presented, it will not view them as determinative of a classification, but merely a consideration.

Therefore, while Customs will consider advertising and documentation such as invoices and purchase orders, such material will be considered only if an examination of the physical characteristics of the garment does not lead to a clear conclusion.

There is evidence submitted that styles VCK-412 and VCK-316 are to be advertised as pajamas and that style C-4007A will be sold in a store which sells only lingerie and intimate apparel. In Mast, at 551, the court pointed out that the expert witnesses in that case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." While it is possible that the term "pajamas" could be used to identify garments other than sleepwear pajamas, we believe that when used in conjunction with phrases such as "essence of comfort" and "summer dream" in describing garments, most consumers will view the term as referring to sleepwear garments.

As to style C-4007A, Customs recognizes that simply because the merchandise at issue is sold in a store specializing in lingerie does not mean that, ipso facto, it is sleepwear. Customs has long recognized that intimate apparel/sleepwear departments often sell a variety of merchandise, some of which may be intended for use as outerwear. See, HRL 075328 of July 8, 1985, HRL 080967 of March 4, 1988, HRL 951754 of June 25, 1992, HRL 952105 of July 21, 1992, and HRL 085672 of October 29, 1989. The environment of sale, however, is a consideration and may lend support for the claimed classification.

Returning to the garments at issue, for it is the garments themselves on which the classification is based, they are made of soft, comfortable cotton. As stated earlier, nothing about their design or construction precludes their use as sleepwear and, in fact, based upon the physical characteristics of these particular garments, i.e., the fabrics and the styling, the garments are suitable for use as sleepwear (although they could be susceptible to other uses). Additionally, the garments are advertised and presented to the consumer as pajamas. In light of the suitability of the garments for use as pajamas and the information submitted by counsel for the importer regarding marketing and advertising of the garments, it is difficult for Customs to reject the importer's claim that the garments are sleepwear and will be principally used as such.

HOLDING:

Styles VCK-412, VCK-316 and C-4007A are classifiable as women's cotton knit pajamas in subheading 6108.31.0010, HTSUSA, textile category 351, dutiable at 9 percent ad valorem.

As set forth in 19 CFR 177.9, a ruling letter issued by the Customs Service regarding the classification of an article under the HTSUSA is applicable only with respect to transactions involving articles identical to the sample submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter. In the case of garments, such as those classified herein, the classification
decision often turns on a visual examination of the garments. Garments which may appear to be similar or identical based upon a written description, when visually examined, may be quite distinctive. Therefore, please note that this ruling is applicable only for the goods classified herein and is not to be considered precedential in nature.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and is available for inspection at your local Customs office.

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

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: