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HQ 956350


July 5, 1994

CLA-2 CO:R:C:T 956350 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6106.10.0010; 6104.62.2010, 6110.20.2075

William Maloney, Esq.
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Reconsideration of DD 894276 of February 14, 1994, and 894277 of February 17, 1994; Classification of certain women's knit garments; loungewear; sleepwear v. outerwear; 6108, HTSUSA, 6104, HTSUSA, 6106, HTSUSA, 6110, HTSUSA

Dear Ms. Kelly-Kobayashi:

This is in response to your request of April 25, 1994, on behalf of Eddie Bauer, Inc., for reconsideration of DD 894276 and DD 894277. The garments covered by these district rulings were classified as outerwear garments in headings 6104, 6106 and 6110, of the Harmonized Tariff Schedule of the United States (HTSUSA). You have requested reconsideration claiming the garments are properly classified as sleepwear garments and have submitted arguments, various documents, and sample garments to substantiate your claim.

FACTS:

The garments at issue are styles 7008--a rib knit shirt, 7009--a rib knit ankle-length pant, and 7004--an oversized rib knit pullover. You identify these garments as a pajama top, pajama pants and a nightshirt. The garments are made of 100 percent cotton medium weight rib knit fabric and will be imported from Hong Kong.

Style 7008 is a rib knit shirt with more than 10 stitches per 2 centimeters in the horizontal and vertical direction. It features long sleeves with loose rib knit cuffs, a round neckline with a partial front opening secured by three buttons, and a straight hemmed bottom with side vents.

Style 7009 is a rib knit pant with a fully elasticized self- fabric covered waistband, a fake fly opening with four buttons, no pockets, and loose rib knit cuffs. -2-

Style 7004 is an oversized pullover with long sleeves, a v- neck opening, and a straight hemmed bottom with side vents. The submitted sample is a size medium and extends to just above the knee on a size medium (size 10) mannequin.

In support of your claim these garments are properly classified as sleepwear, you have submitted copies of your client's purchase orders in which the subject styles are described as pajama tops (7008), pajama pants (7009), and nightshirts (7004). You have submitted a copy of your client's listing of merchandise departments and pointed out that department 045 is the sleepwear department and that is the department shown on the purchase orders as ordering these garments. Additionally, each purchase order has the statement "merchandising sleepwear" appearing just above the shipping instructions. These garments will be sold exclusively through Eddie Bauer catalogues and will be identified as pajama separates (7008 and 7009) and a nightshirt (7004).

At a meeting at our offices on June 22, 1994, a member of your firm supplied us with advance copies of the planned artwork for the catalogue advertising the garments at issue. We have taken into consideration all of the information supplied in relation to this case. In addition, we have considered information submitted with file number 956351, a related case, including catalogues which were submitted to show how other companies are marketing similar goods.

ISSUE:

Were the garments at issue properly classified in DD 894276 and 894277 as outerwear garments in headings 6104, 6106 and 6110, HTSUSA, or are they classifiable as sleepwear garments in heading 6108, 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]."

In determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade which are often cited when discussing sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986) the Court of International Trade dealt with the classification of a garment claimed to be sleepwear. The court -3-
cited several lexicographic sources, among them Webster's Third New International Dictionary's which defined "nightclothes" as "garments to be worn to bed." In Mast, the court determined that the garment at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear.

In contrast, the Court of International Trade disregarded claims regarding marketing and advertising in Regaliti, Inc. v. United States, Slip Op. 92-80, which dealt with the classification of garments known as leggings which were classified as pants by Customs and claimed by the importer to be classifiable as tights. In upholding Customs classification of the goods as pants, the court stated:

Plaintiff's fashion merchandising experts testified that these items were "tights," and plaintiff advertises them as 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."

In past rulings, Customs has stated that the crucial factor in the classification of a garment is the garment itself. As the court pointed out in Mast, "the merchandise itself may be strong evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti. Slip-Op. 92-80. We have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outerwear. See, HRL 955341 of May 12, 1994 and rulings cited therein; HRL 952105 of July 1992; HRL 085672 of October 29, 1989; and HRL 955088 of December 14, 1993. With these points in mind, Customs has reviewed your claim that these garments are classifiable as sleepwear and we are unpersuaded. -4-

When considered with the other information presented, Customs does not find the descriptions of the garments at issue as pajama tops, pajama pants and nightshirts on the purchase orders provided or the fact that they are ordered by the sleepwear department of particular significance. What we do find of importance is the garments themselves and the manner in which they will be presented to the public.

One of the arguments presented to support the claim that these garments are sleepwear is that they will be advertised in the Eddie Bauer catalogue as a sleepwear group consisting of pajama separates and a nightshirt. It has been argued that presentation in a catalogue precludes any ambiguity as to the intended use of a garment because the consumer has only the description in the catalogue upon which to rely in deciding what a garment is and how it is to be used or worn. While it is true that such a presentation may reduce the likelihood of ambiguity regarding a garment's intended use, it is also true that simply identifying a garment as a "pajama" does not, in and of itself, mean that it is sleepwear.

The term "pajamas" is defined in Charlotte Mankey Calasibetta's Essential Terms of Fashion at 128, in relevant part, as:

One- or two-piece item of apparel originally designed for sleeping; later for lounging; and in the late 1960s for entertaining, evening parties, and dining out. * * * Popular for lounge- and beachwear in the late 1920s and 1930s. * * * [emphasis added].

The same source includes definitions for specific types of pajamas including:
culotte p. Floor-length pajamas with wide legs, resembling a long dress, worn for dining in mid and late 1960s and early 1970s. Also called hostess culottes. Also see CULOTTES under PANTS and SKIRTS. [emphasis added].
lounging p. Full-length pajamas cut in tunic or one-piece style. Legs are side and long that give the appearance of a skirt when not in motion. Introduced in the 1930s and used for lounge- and beachwear. Reintroduced in mid-1960s for evening or at-home wear. [emphasis added].

Mary Brooks Picken's The Fashion Dictionary defines pajamas (at 264) as:

Suit consisting of coat or blouse and trousers. Worn for sleeping, lounging, beach wear, depending on the style and -5-
fabric; more formally, for afternoon and evening wear at home. Originally, ankle-length trousers worn by natives of India, Persia, etc.

From the above cited definitions, it is clear that garments which are called "pajamas" may be sleepwear, loungewear, beachwear or streetwear.

As stated at the beginning of this discussion, the court in Mast, 9 CIT 552, defined nightwear as "garments to be worn to bed." In determining if a garment is classifiable as a sleepwear garment, Customs must look to its principal use and whether the subject garment is principally worn to bed.

The planned artwork and advertising copy for the subject garments clearly identifies the garments as follows: style 7008- -knit pajama top, style 7009--knit pajama pants, and style 7004- -knit nightshirt. However, the headline at the top of the page states:

Relax all morning--or all day--in the softness of Eddie Bauer loungewear.

The copy goes on to describe the garments again as loungewear and states: "Our pajamas are made to wear in every room of the house, any time of day." As the court noted in Mast, at 551, "most consumers purchase and use a garment in the manner in which it is marketed." In our view, these garments are clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are presented as multi- purpose garments and, in fact, with the exception of the use of the terms "pajama" and "nightshirt" in describing the goods, nothing else in the advertising copy suggests the garments are designed or intended for wear while sleeping. Thus, Customs does not agree that these garments are presented to consumers as sleepwear garments; they are held out as casual loungewear for all day wear if desired.

The garments themselves do not appear to be clearly sleepwear garments. In fact, the styling of the garments and the type of fabric used in their construction is suggestive of casual clothing or leisure wear. While it is argued that "nothing about the design or appearance of the garment . . . would in any way suggest it was unsuitable for use as a pajama top" [referring to style 7008, but similarly argued for styles 7009 and 7004], our concern goes beyond suitability for use to whether the garment is primarily or principally used in the manner claimed.

In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade discussed the use of garments in determining their classification. In this regard, the court stated:

The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function. Trans- Atlantic Co., v. United States, 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973). Hampco, 12 CIT 92, 96.

You have argued that "nothing about the design or appearance" of the garments makes them unsuitable for use as sleepwear, and this may be true. However, the counter argument that nothing about the design or appearance makes them unsuitable for use as outerwear is equally true.

Taking into consideration all of the information before us, especially the garments themselves and the planned marketing and advertising, Customs believes these garments are properly classified as outerwear garments, not as sleepwear.

HOLDING:

The decisions in DD 894276 of February 14, 1994, and 894277 of February 17, 1994, classifying the subject garments as outerwear are correct.

Style 7008, knit pajama top, is classified in subheading 6106.10.0010, HTSUSA, which provides for, among other things, women's knit cotton shirts. Style 7008 is subject to a duty rate of 21 percent ad valorem and falls within textile category 339.

Style 7009, knit pajama pants, is classified in 6104.62.2010, HTSUSA, which provides for, among other things, women's knit cotton trousers. Style 7009 is subject to a duty rate of 16.7 percent ad valorem and falls within textile category 348.

Style 7004, knit nightshirt, is classified in subheading 6110.20.2075, HTSUSA, which provides for, among other things, women's knit cotton pullovers. Style 7004 is subject to a duty rate of 20.7 percent ad valorem and falls within textile category 339. Note, DD 894276 incorrectly indicates style 7004 falls within textile category 359. We believe this is a typographical error and as the textile category is indicated in rulings as a courtesy, we are not modifying DD 894276.

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

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