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HQ 953001


January 21, 1993

CLA-2 CO:R:C:T 953001 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.31.0010

Saralee Antrim-Saizan
Carmichael International Services
256 West Ivy Avenue
Inglewood, CA 90302-3394

RE: Classification of a two-piece ladies' garment; sleepwear v. outerwear; heading 6108, HTSUSA; classification based on physical examination of the garment and extrinsic evidence of marketing, advertising and industry treatment; HRL 951776 (10/1/92); Mast Industries v. U.S., 9 CIT 549 (1985), aff'd, 786 F. 2d 1144 (1986).

Dear Ms. Antrim-Saizan:

This is in reply to your letter of October 22, 1992, on behalf of Venture Stores, requesting the tariff classification of a ladies' two-piece garment. A sample was submitted to this office for examination.

FACTS:

The submitted sample, referenced style 8520, is a ladies' two-piece garment constructed of 55 percent cotton and 45 percent polyester rib knit. The boxy top is generously cut with short, hemmed sleeves, straight bottom hem, scoop neckline and a six button placket opening at the front. The bottoms are shorts with relaxed boxer styling, covered elastic waist and full, easy shape. The sample is labeled a size medium.

It is submitted that these garments were purchased for Venture Stores' sleepwear departments and intended to be sold as such. A copy of the purchase order shows style 8520 was purchased for department number 004; an accompanying department listing shows department 004 is sleepwear. Department 027 is designated as the robes/loungewear department.

Advertising was also submitted for this garment. Venture Stores' advertisement for this garment consists of a photograph
of two models. One women is wearing style 8520, and she is standing next to a seated women wearing a floor-length nightgown. The ad's copy reads, "LADIES' KNIT RIBBED SHORTY PAJAMAS OR PINAFORE GOWNS Pjs in poly/cotton, reg. $14.99, 100% cotton gowns, reg.$15.99."

ISSUE:

Is style 8520 classifiable as pajamas of heading 6108, HTSUSA, or as outerwear of heading 6104, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States (HTSUSA) is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

In Mast Industries v. United States, 9 CIT 549, (1985), aff'd 786 F.2d 1144 (1986), the court examined how a garment was designed, manufactured, marketed and sold as indicative of whether that garment was indeed used as sleepwear. In applying these principles to the instant merchandise, we first must examine the physical characteristics of the garment itself in order to determine its use.

The garment at issue is constructed of a soft, rib knit, cotton/polyester blend. The sample is labeled a size medium, however the proportions of the garment are oversized and are larger than a normal size medium. It is clear that the garment is designed to be loose-fitting and comfortable and is perfectly suitable for use as sleepwear.

We recognize that the physical characteristics of this garment are such that it could also conceivably be used as outerwear. The garment's fabric is opaque enough so that it could be worn as outerwear and, although the garment appears much larger than a normal size medium, we realize that oversize garments are currently in fashion. Our examination of the garment yields a finding that it is suitable for use as either sleepwear or outerwear.

As our physical examination of style 8520 proved inconclusive as to whether it is sleepwear or outerwear, our analysis now focuses on the submitted extrinsic evidence which purports to demonstrate how the importer treats this article internally, how it is marketed to the consumer, its environment of sale, and how the industry treats this type of garment.

You have provided internal documentation in the form of a purchase order which states that the importer ordered style 8520 as "2-piece sleepwear set" and it is intended for Venture Stores' sleepwear departments (dep't 004). You also provided a store department listing which itemizes all the department numbers in the store. Department 004 is designated as the sleepwear department. We recognize that internal documentation and descriptions on invoices may be self-serving and should only be considered in totality with other evidentiary information. See Headquarters Ruling Letter (HRL) 950503, dated June 19, 1992. Therefore, while we will consider the information contained in your submission, such material is considered only because examination of the physical characteristics of the garment did not lead to a clear conclusion as to the garment's identity.

More persuasive is Venture Stores' advertisement depicting a model wearing style 8520 with copy referring to the garment as "shorty pajamas". Not only does the copy refer to the garment as "pajamas", but the model is standing next to another seated model who is undeniably wearing sleepwear. This ad clearly demonstrates that Venture Stores markets these garments to the public as sleepwear. In Mast, at page 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." It is this office's opinion that most consumers will view the term "pajamas" as referring to a sleepwear garment rather than loungewear, especially when such language is used in conjunction with a photograph of a women wearing style 8520 next to a women in a traditional floor-length nightgown.

With regard to the issue of environment of sale, we are aware that Venture Stores is not a boutique or specialty store such as Victoria's Secret. If a store is well established as an intimate apparel store, this is strong indication that the garments sold therein are intimate apparel. In this case, Venture Stores is a more generalized department store. As acknowledged above, we are in receipt of the department listing and purchase order which states that style 8520 is intended for the sleepwear department. We realize that not only are these documents internally produced and therefore less reliable than other methods of establishing a garment's identity, but we also recognize that even if a garment is to be displayed in the "sleepwear" department, this is not incontrovertible evidence of that garment's status as sleepwear. Many sleepwear departments also display loungewear meant for use as outerwear around the house. In this case, the submitted department listing also contains reference to a "robes/loungewear" department. This further persuades us that Venture Stores separates its sleepwear from its loungewear and that if style 8520 is displayed in the
sleepwear department, it is held out to the consumer as sleepwear.

Lastly, this office is in possession of several catalogues, both intimate apparel catalogues and more general types of catalogues, which advertize very similar types of garments as pajamas. This indicates that the trade treats these types of garments as pajamas and is further evidence of style 8520's status as sleepwear.

The evidence, taken in its totality, indicates that the garment at issue is sleepwear. This conclusion is based on the fact that while the physical characteristics of this garment may be suitable for use as either sleepwear or outerwear, adequate evidence was provided by the inquirer to establish that Venture Stores purchased this garment as sleepwear, markets it to the public as such, and the trade treats virtually identical garments as sleepwear.

HOLDING:

The garment at issue, style 8520, is classifiable under subheading 6108.31.0010, HTSUSA, as women's cotton knit pajamas, dutiable at 9 percent ad valorem. The applicable textile quota category is 351.

The designated textile and apparel categories 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 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

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