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HQ 957004




November 23, 1994

CLA-2 CO:R:C:T 957004 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.31.0010, 6108.91.0030

Diane Weinberg, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, New York 10022-1106

RE: Classification of certain women's knitted sleepwear garments; North American Free Trade Agreement; preference eligibility; Article 509

Dear Ms. Weinberg:

This ruling is in response to your request of August 13, 1994, on behalf of your client, Bali Company (operating as Sara Lee Intimates), regarding the classification of certain women's knit sleepwear garments and their eligibility for duty preference treatment under the North American Free Trade Agreement (NAFTA). Samples were received with your request.

FACTS:

Five sample garments were submitted, all of which are claimed to be sleepwear classifiable in heading 6108, HTSUSA, which provides for, among other things, women's cotton knit nightdresses and pajamas and similar articles. The garments are identified by exhibit numbers, 1 through 5, and all are made of 100 percent cotton lightweight (4 ounce combed cotton) jersey knit fabric. The garments will be manufactured in Mexico from Mexican fabric and Mexican yarn. They will be sold in sizes petite, small, medium and large.

The first two garments, exhibits 1 and 2, are identified as nightdresses. Exhibit 1 (style G621) is a calf-length pullover nightgown with full length sleeves, a crew neck, and a rounded shirt-tail style bottom. The garment features contrasting capping at the neck, sleeve ends and bottom. It is designed to be loose and unfitted. Exhibit 2 (style G631) is a pullover knee-length sleepshirt with length sleeves, a V-neck, and a rounded shirt-tail style bottom. The garment features contrasting capping at the neck, sleeve ends and bottom. It is designed to be loose and unfitted. -2-

Exhibit 3 is a sleep top (pajama top). The garment reaches to slightly below the hip area in length. It features length sleeves, a wide crew neck, a chest patch pocket, and a rounded shirt-tail style bottom. The garment features contrasting capping at the neck, sleeve ends, bottom, and top of the patch pocket. It is designed to be loose and unfitted.

Exhibits 4 and 5 are sleep bottoms (pajama bottoms). Exhibit 4 is a pair of long pajama bottoms. The bottoms have an elasticized waist and contrasting capping at the leg bottoms. The garment is designed to be loose and has no pockets. Exhibit 5 is a pair of short pajama bottoms that feature an elasticized waist and no pockets. Exhibits 4 and 5 are made of matching fabric and may be coordinated with exhibit 3, the sleep top.

In support of your claim that the subject garments are sleepwear, you submit that the garments will be advertised as "Hanes Her Way Dusk to Dawn" at home wear. You submit the garments are designed to be worn for sleeping, but may be worn as loungewear prior to going to bed and then as sleepwear in bed. In addition, you indicate the garments are manufactured by Bali Company, a company which does not manufacture or sell outerwear garments, and that the garments will be sold in Walmart's Intimate Apparel Department (which does not sell outerwear garments).

ISSUE:

How are the garments at issue classified and do they qualify for preferential trade treatment under the North American Free Trade Agreement (NAFTA)?

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 and which, indeed, you cite in your submission. 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 cited several lexicographic sources, among them Webster's Third New International Dictionary's which defined "nightclothes" as -3-

"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 "tights." * * * .
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 agree.

Customs believes that exhibits 1 and 2 (styles G621 and G631) are a nightgown and nightshirt, respectively. Based upon an examination of the garments, the fabric with which they are made and the styling of the garments, Customs believes they clearly fall within the common meaning of the terms nightgown and nightshirt. See, Headquarters Ruling Letter (HRL 956202 of September 29, 1994.

As to exhibits 3, 4 and 5, the classification decision is based largely on the garments themselves, however, the additional information presented to support classification as sleepwear was also taken into consideration. Based upon all the information presented, Customs agrees that exhibits 3, 4 and 5 are sleepwear garments and if presented together as a matching top and bottom set, e.g, 3 and 4, or 3 and 5, Customs would view the garments as knit pajamas. Classification of exhibits 3, 4 and 5 will be dependent on their condition as imported, and in that regard, Customs stated in HRL 956202:

Based upon their condition at the time of importation, shipments of equal numbers of matching sleepwear (pajama) tops and sleepwear (pajama) bottoms will be viewed by Customs as shipments of composite goods that form a whole which is not normally sold as separate parts and is commercially known as pajamas. Thus, garments in such shipments will be classified as pajamas of heading 6208, HTSUSA. [In this case, heading 6108, HTSUSA.] Please note, that by the term "matching", Customs is making reference not only to design, style and coloring, but also to size. In regard to sizing, provided the bulk of the shipment consists of garments (tops and bottoms) which are matched as to size, a slight variation in sizing between a limited number of tops and bottoms will not preclude classification as pajamas.

If imported separately (shipments of only tops or only bottoms) or if imported as extra components without a matching top or bottom in a shipment, sleepwear separates cannot be classified as pajamas because they fail to meet the common and commercially understood definition of pajamas in their condition as imported. See, HRL 956202, HRL 956239, 088635 of May 24, 1991, and HRL 089367 of July 31, 1991. As sleepwear separates, Customs views the garments as similar articles of heading 6108, HTSUSA. See, HRL 956202 of September 29, 1994; HRL 956239 of October 4, 1994; and, HRL 956755 of November 10, 1994.

As to your request regarding trade preference treatment under the NAFTA, Chapter 4 of the NAFTA sets forth rules for determining whether an imported good qualifies as an originating good of a NAFTA country. A good that qualifies as an originating good is eligible for preferential tariff treatment as provided -5-
for under Article 302(2) and Annex 302.2 of the NAFTA. The basic rules of origin in Chapter 4 of the NAFTA, as well as the specific rules of origin found in Annex 401 of the NAFTA, are set forth in General Note 12, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). (See 58 Fed. Reg. 69, 460, December 30, 1993).

Subdivision (b) of General Note 12, HTSUSA, provides, in pertinent part:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or,

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials.

Your letter indicates that the garments are manufactured in Mexico from Mexican fabric which is made from Mexican yarn. Note 12(t) sets out the specific tariff shift rules for qualifying as an originating good.

As stated above, the goods at issue are classifiable as women's knit sleepwear in heading 6108, HTSUSA. Specifically, exhibits 1 and 2 are classifiable in subheading 6108.31.0010, HTSUSA, as women's knit cotton nightdresses. Exhibits 3, 4, and 5 are classified dependent upon their condition as imported. If imported in equal numbers of matching sleepwear, i.e., tops and -6-
bottoms, the garments will be classified as women's knit cotton pajamas in subheading 6108.31.0010, HTSUSA. If imported separately (shipments of only tops or only bottoms) or if imported as extra components without a matching top or bottom in a shipment, exhibits 3, 4, and 5 are classifiable as similar articles to nightdresses and pajamas in subheading 6108.91.0030, HTSUSA.

Therefore, the specific tariff shift rules which must be met in order to qualify as an originating good are as follows:

General Note 12(t)/61.32:

A change to subheading 6108.31 from:

(A) tariff item 6002.92.10, provided that the good, exclusive of collar, cuffs, waistband, elastic or lace, is wholly of such fabric and the good is both cut and sewn or otherwise assembled in the territory of one or more of the NAFTA parties, or

(B) any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516 or 6001 through 6002, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.

General Note 12(t)/61.34:

A change to subheadings 6108.91 through 6108.99 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516 or 6001 through 6002, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.

As the tariff shift which occurs in Mexico is from yarn to garments of 6108.31 or 6108.91, and the garments are both cut and sewn in Mexico, the garments at issue qualify as originating goods for NAFTA preferential treatment.

HOLDING:

Exhibits 1 and 2 are classifiable in subheading 6108.31.0010, HTSUSA, as women's knit cotton nightdresses. Goods classified therein fall in textile category 351 and are dutiable -7-
at a rate of 9 percent ad valorem. As an originating good under the NAFTA, exhibits 1 and 2 are dutiable at 8.1 percent ad valorem as products of Mexico. Exhibits 3, 4, and 5 are classified dependent upon their condition as imported. If imported in equal numbers of matching sleepwear, i.e., tops and bottoms, the garments will be classified as women's knit cotton pajamas in subheading 6108.31.0010, HTSUSA. If imported separately (shipments of only tops or only bottoms) or if imported as extra components without a matching top or bottom in a shipment, exhibits 3, 4, and 5 are classifiable as similar articles to nightdresses and pajamas in subheading 6108.91.0030, HTSUSA. Goods classified therein fall within textile category 350. As originating goods under the NAFTA, exhibits 3, 4, and 5 classified in 6108.31.0010, HTSUSA, or 6108.91.0030, HTSUSA, are dutiable at 8.1 percent ad valorem as products of Mexico. As originating goods under the NAFTA, these garments are not subject to textile quota restraints. See, Annex 300-B, Appendix 3.1(B) of the NAFTA.

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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