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HQ 959357




March 26, 1997

CLA-2 RR:TC:TE 959357 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0030; 6110.20.2075

Hong Kong Economic and Trade Office
1150 18th Street, N.W., Suite 475
Washington, D.C. 20036

RE: Classification of women's various tops and bottoms; sleepwear; Heading 6108; Heading 6114; Reconsideration of PC A83200, dated May 6, 1996

Dear Sir/Madam:

This is in response to your inquiry of June 11, 1996, requesting a tariff classification ruling for certain women's garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This request is on behalf of Lane Bryant Inc. Although there is no style number listed for the subject garments, they appear to be the garments ruled upon as part of a pre-entry classification ruling, PC A83200, dated May 6, 1996. This request, therefore, is a partial reconsideration of PC A83200. Samples were submitted for examination and will be returned under separate cover.

FACTS:

The merchandise at issue, which is constructed of 100 percent knit lightweight fabric, consists of the following: A pair of shorts with an exposed elasticized waistband, false fly with two buttons, and a hemmed bottom; A top with a rounded neckline, short sleeves, and a hemmed bottom; A pair of pants with an exposed elasticized waistband and hemmed bottom; And an upper body garment containing a hood, a full frontal zipper opening, long sleeves, kangaroo pockets, and a hemmed bottom. Each of these garments has the "Solange" label, which is Lane Bryant's intimate apparel label.

ISSUE:

What is the proper tariff classification of the subject merchandise?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of
Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Heading 6110, HTSUSA, is the provision for other garments sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles knitted or crocheted. Heading 6108, HTSUSA, is the provision for women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases which concerned the classification of sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 144 (CAFC, April 1, 1986), the Court of International Trade considered 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 (Guidelines), CIE 13/88, dated November 23, 1988, state on page 24, the following:

Pajamas are worn by both sexes and all ages. They consist of an upper part, pullover or coat style, with long, short, or no sleeves and a lower part, short, intermediate, or long trouser-like garments or of any style panties. The lower part sometimes encloses the feet. Pajamas are sleepwear.

When ruling on similar merchandise in the past, Customs has usually examined the physical characteristics of the garments in question. When this has not proven determinative, other extrinsic evidence such as advertising and marketing information has been considered. In support of this position, in Headquarters Ruling Letter (HQ) 951754, dated June 25, 1992, Customs stated the following, in pertinent part:

The subject merchandise is of a type of garment that is capable of being used for more than one purpose. Use of this article both as shorts and as sleepwear is feasible and it is this duality which complicates classification. When confronted with garments which are
claimed to be of a particular class, yet strongly resemble articles of another class, Customs will first examine the article itself and its particular design features and thereafter any other extrinsic evidence pertaining to the marketing, advertising and sale of the article....

The importer, in this instance, contends that the upper body garments are classifiable as women's outerwear garments while the bottoms are classifiable as women's pajama separates. It is important to note that in PC A83200 counsel on behalf of the importer, presented Customs with a lengthy submission in addition to design, marketing, and advertising data to support the importer's claim that the garments therein which includes all of the subject garments, were classifiable as sleepwear separates of Heading 6108, HTSUSA.

Customs is of the opinion that the upper body pullover and both of the lower body garments are of the same kind, class, or nature, as the exemplars in Heading 6108, HTSUSA. Furthermore, Customs believes that the lightweight material and the overall construction of these garments indicate that they are intimate apparel. They are garments that would not be worn outside the home and, when worn, would be worn only in the presence of family or close friends. After careful examination of the hooded garment, Customs believes that it is designed primarily for use as loungewear to be worn in and around the home. Specifically, the hood, zipper, and drawstring are styling features generally found on outerwear garments. These characteristics contradict the claim that this is a sleepwear robe. Consequently, this hooded garment is classifiable under Heading 6110, HTSUSA.

HOLDING:

The shorts, pants, and pullover garment are classifiable as women's cotton sleepwear separates in subheading 6108.91.0030, HTSUSA. The applicable rate of duty is 8.8 percent ad valorem and textile restraint category is 350. The hooded upper body garment is classifiable in subheading 6110.20.2075, which is the provision for women's sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, of cotton, other. The garment is dutiable at 19.4 percent ad valorem and the textile restraint category is 339.

The designated textile and apparel category may be subdivided into parts. If so, 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 that 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 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
Tariff Classification Appeals

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