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HQ 958254




October 2, 1995

CLA-2 R:C:T 958254 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2065, 6103.42.1020,6103.42.1050

Mr. James Martino
Russell-Newman Inc.
600 N. Loop 288
Denton, Texas 76202

RE: Classification of certain men's knit garments; Reconsideration of New York Ruling Letter (NYRL) 807639 and NYRLs 807640 and 807641; sleepwear v. loungewear/outerwear; submission of new samples

Dear Mr. Martino:

This is in response to your submission of May 26, 1995, requesting Customs reconsider the classification decisions in NYRLs 807639, 807640 and 807641, all of which were issued on April 6, 1995. Samples were submitted with your request for reconsideration. However, these samples differ from the original samples submitted and ruled upon in the New York ruling letters at issue. This office will reconsider the subject rulings in regard to the initially submitted samples. We will classify the new samples submitted with this request as separate and apart from the reconsideration issue.

FACTS:

NYRLs 807639, 807640 and 807641 classified the following garments, styles 75002T and 75012T (NYRL 807639), style 950027 (NYRL 807640), and style 85002T (NYRL 807641) as men's pullovers, shorts, and pants, respectively. You have requested reconsideration of these decisions claiming the garments are properly classifiable as men's sleepwear garments.

All of the garments are constructed of 100 percent cotton jersey knit fabric containing more than nine stitches per two centimeters counted in the horizontal direction. The fabric of each garment is fairly substantial, medium weight, knit fabric. The garments will be imported from Peru.

Style 75002T is a men's size large, pullover with a rib knit crew neckline, long sleeves with rib knit cuffs, and a straight -2-
hemmed bottom with three-inch side slits. The garment has a woven triangle-shaped overlay at the center front neckline and a triangular knit fabric sweat patch sewn to the inner back neckline. A strip of knit fabric measuring four inches by seven- eights of an inch, and with a woven "Tommy Hilfiger" label attached, is cross stitched to the center rear neckline below the nape of the neck.

Style 75012T is men's pullover with short hemmed sleeves, a rib knit crew neckline, and a straight hemmed bottom with three- inch side slits. The garment has a woven triangle-shaped insert at the center front neckline and a triangular knit fabric sweat patch sewn to the inner back neckline. A hanger loop of knit fabric measuring four inches by seven-eights of an inch, and with a woven "Tommy Hilfiger" label attached, is cross stitched to the center rear neckline below the nape of the neck.

Style 950027 is a pair of men's knit shorts. The shorts have an exposed, jacquard elastic waistband which reads, "Tommy Hilfiger". The shorts also have two side seam pockets, a rear pieced, patch pocket with a self fabric edge, hemmed leg openings, and no fly. The jacquard elastic waistband has an almost four-inch piece of plain wide elastic inserted at the rear of the waistband.

Style 85002T is a pair of men's, size large, knit pants. The pants feature an exposed, jacquard elastic waistband which reads, "Tommy Hilfiger". The pants also feature two side seam pockets, a rear patch pocket, rib knit cuffs at the ankles, and no fly.

Styles 75002T and 75012T were classified in NYRL 807639 as men's cotton knit pullovers in subheading 6110.20.2065, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Style 950027 was classified in NYRL 807640 as a pair of men's cotton knit shorts in subheading 6103.42.1050, HTSUSA. Style 85002T was classified in NYRL 807641 as a pair of men's cotton knit pants in subheading 6103.42.1020, HTSUSA.

The new samples submitted with your request are identified by the same style numbers as the original samples. Therefore, in this ruling letter we will distinguish the new samples by adding the following designation, (NS), which stands for, quite simply, "new sample", after the style number.

The new samples differ in that all are made of a lighter weight knit fabric from that used in the original samples. The pants and shorts no longer have back patch pockets. A logo has been embroidered onto the shorts and the pants; in each case, appearing on the left in the hip area. The pants now have hemmed leg bottoms as opposed to the previous rib knit cuffs at the -3-
ankles. The shorts have one and one-half inch side slits on the legs. Woven fabric labels have been sewn to the front center waistband of the pants and shorts.

Style 75002T(NS) has a triangular knit fabric insert which is the same fabric as the garment, instead of the woven overlay in the original style 75002T. In addition, the rib knit cuffs at the end of the long sleeves are now of a lighter weight, with less elasticity and wider width than in the original sample. Style 75012T(NS) has a triangular knit fabric insert which is the same fabric as the garment, instead of the woven insert in the original style 75012T. Both of the new samples feature sewn on labels stitched to the center rear neckline below the nape of the neck. These labels can be used as hanger loops and replace the four inch by seven-eights of an inch knit fabric, with a woven "Tommy Hilfiger" label attached, which appeared on the earlier versions. Each of the new samples also features a screen-printed logo at the chest.

In seeking reconsideration of the NYRLs at issue, you submit these garments are properly classifiable as men's sleepwear for the following reasons:

1. Every garment you sell will have a hangtag stating "Tommy Hilfiger Sleepwear".

2. Most of your orders have been sold to large department stores and purchased by the men's robe and sleepwear buyers for sale in the men's furnishings department.

3. Your licensing contract with Tommy Hilfiger Inc. precludes you from selling sportswear. Your merchandise will not be sold or displayed in the "Tommy Hilfiger Shop" with sportswear. You argue that "traditionally, men do not shop the men's sleepwear department for sportswear or outerwear."

4. You have changed the original samples to eliminate the back pocket on the pajama pants.

5. Customs has recently issued a ruling on sleep bottoms which had side seam pockets. You cite Headquarters Ruling Letter 957134.

6. Your company is a sleepwear and robe company. You state that "in the case of Tommy Hilfiger products, all of them are represented as and purchased with the full intent of being sold in men's robe and sleepwear departments."

ISSUE:

Are the subject garments classifiable as men's knit sleepwear of heading 6107, HTSUSA, as claimed?

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]."

Heading 6107, HTSUSA, provides for, among other things, men's knitted or crocheted nightshirts, pajamas and similar articles. The Explanatory Notes (EN) for the Harmonized Commodity Description and Coding System, the official interpretation of the Harmonized System at the international level, do not provide much additional information than that provided by the language of the heading. The EN for heading 6207 provides, in part, the following:

The heading also includes nightshirts, pyjamas, bathrobes (including beachrobes), dressing gowns and similar articles for men or boys (garments usually worn indoors).

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 cited several lexicographic sources, among them Webster's Third New International Dictionary 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.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), (hereinafter Guidelines), which offer guidance to the trade community and Customs personnel as to various characteristics of garments, state that "the term 'nightwear' is interpreted as meaning 'sleepwear' so that certain garments worn in bed in the -5-
daytime, . . ., are included." The Guidelines indicate that besides pajamas, other nightwear includes various articles worn for sleeping.

Classification of garments as sleepwear is classification based upon use. In this regard, Additional U.S. Rule of Interpretation 1(a) provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise.

In support of your claim that these garments are sleepwear and should be so classified, you emphasize that these garments will be purchased by the men's robe and sleepwear buyers of stores and sold in the men's robe and sleepwear departments. Customs has stated on numerous occasions that the location within a store in which a garment is sold is not determinative of its classification. Although the environment of sale is a factor which may be considered in determining a garment's identity, Customs recognizes that sleepwear/loungewear departments often sell a variety of merchandise, for example, garments known as leisure wear (i.e., loose, comfortable clothing worn in or outside the home in a casual environment). This is especially true in women's fashions and, in our view, becoming increasingly true in men's fashions. See, HRL 955341 of May 12, 1994 and rulings cited therein; HRL 952105 of July 1992; HRL 085672 of October 29, 1989; HRL 951032 of May 7, 1992; and HRL 955088 of December 14, 1993.

You indicate your licensing agreement with Tommy Hilfiger Inc. precludes you from selling sportswear. The classification issue at hand is not whether these garments are "sportswear" in the trade, but whether they are sleepwear. Denial of classification as sleepwear does not mean Customs views the garments as "sportswear", but simply that we do not view the garments to be principally used for wearing to bed for sleeping, i.e., as sleepwear. While licensing agreements may be evidence of intended markets or use, they are not determinative and, as in this case, may not be particularly helpful in ascertaining a correct tariff classification. Garments that are not sleepwear may fall into various fashion categories besides sportswear, including "loungewear" or "leisure wear".

In classification, the most persuasive evidence is the garment itself. The court in Mast Industries, Inc. v. United States, 9 CIT 549, 552, (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963), pointed out that "the merchandise itself may be strong evidence of use." Customs believes this basic principle is especially valid in this case. -6-

Customs has examined all of the submitted samples, original and revised, and we believe these garments are multi-purpose garments that may be best characterized as "loungewear". Nothing in the construction or styling of the garments makes them especially suitable as sleepwear or indicate that they would be principally used as such. In fact, the fabric, design, styling and construction of these garments makes them suitable for various purposes, including wearing in public. Additionally, certain features would seem to detract from a classification of the garments as sleepwear and support classification as other than sleepwear, such as, the lack of a fly and presence of side seam pockets on the pants, and the manner in which the garments are marketed and sold.

In HRL 956507 of October 11, 1994, Customs classified a pair of men's woven cotton flannel pants as pants of heading 6203, HTSUSA, and not as sleepwear. The pants therein were similar to the pants and shorts at issue here in that they had side seam pockets and no fly. In ruling the garment was not sleepwear, Customs stated:

Likewise, the presence of a front fly is a matter of common sense and convenience in the case of pajamas, but such a feature might be avoided in the design of loungewear of simple construction. The decency element associated with wearing apparel might dictate a closure on a fly or no fly at all in the case of loungewear, whereas in the case of pajamas, unsecured flys are common. This understanding is confirmed by information provided by the trade.

You have not provided any advertising information regarding the subject garments. The only information submitted is that the garments will be sold in men's furnishing departments or sleepwear departments within department stores, and that the garments will each have a hangtag affixed to them stating "Tommy Hilfiger Sleepwear". Based upon the submission of the garments as separates, Customs assumes these garments are indeed sold as separates. While Customs recognizes that in women's fashions today, mix and match sleepwear is a commercial reality, we have not seen it in men's fashions. In women's fashions, mix and match is often a function of not only choice in selection, but offered to accommodate sizing variations, i.e., needing a larger sized top than bottom, or vice versa. Customs is unaware of such sizing difficulties in men's sleepwear. Men's sleep bottoms (shorts or pants) are advertised, but Customs has not seen advertisements for separate sleep tops or men's mix and match sleepwear separates. However, Customs' National Import Specialist who reviewed this merchandise has found several advertisements for men's loungewear separates.

In HRL 951032 of May 7, 1992, Customs classified five cotton jersey knit men's garments as outwear garments, although claimed to be sleepwear. In that ruling, Customs indicated we believe the garments were "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." As stated above, Customs views the subject garments also to be loungewear, i.e., comfortable, casual attire to be worn in or around the home, and even in some cases, on the street.

The affixation of a hangtag to each garment stating "Tommy Hilfiger Sleepwear" is of little significance in this case. The garments are themselves the best evidence of their classification. We also note that the letterhead of the specification sheet which was submitted to Customs as part of the original ruling request shows the Tommy Hilfiger name and logo at the top with "Robes-Lounge-Sleepwear" appearing immediately under it. This grouping would appear to indicate that loungewear is grouped with sleepwear and robes. Thus, while you indicate your company is a sleepwear and robe company, you fail to indicate if loungewear is included in its line. The specification sheet would seem to indicate that it is.

As to HRL 957134 of April 4, 1995, that ruling dealt with the classification of men's woven cotton pajamas and matching robe. We note that in that case the garments were sold separately, however, they were advertised together. Customs believes this ruling is distinguishable from the instant case based upon the garments themselves and the information presented in that case regarding marketings and advertisements.

Based upon the above analysis, the subject garments, original and revised, are not classifiable as sleepwear. They are classified as men's knit pants and tops.

HOLDING:

NYRLs 807639, 807640 and 807641 properly classified styles 75002T, 75012T, 950027 and 85002T.

Styles 75002T and style 75012T, original and new samples (revised), are classified as men's cotton knit pullovers in subheading 6110.20.2065, HTSUSA, textile category 338, dutiable at 20.3 percent ad valorem.

Style 950027, original and new sample, is classified as men's knit shorts in subheading 6103.42.1050, HTSUSA, textile category 347, dutiable at 17 percent ad valorem.

Style 85002T, original and new sample, is classified as men's knit trousers in subheading 6103.42.1020, HTSUSA, textile category 347, dutiable at 17 percent ad valorem.

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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