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HQ 959084




July 18, 1997

CLA-2 RR:TC:TE 959084 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6107.21.0010; 6107.91.0030

Allan H. Kamnitz, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-seven Broad Street
New York, NY 10004

RE: Reconsideration of NY A80370, dated March 13, 1996; sleepwear vs. outerwear; Heading 6107; Heading 6103; Heading 6110

Dear Mr. Kamnitz:

This is in response to your inquiry of March 25, 1996, requesting reconsideration of New York Ruling Letter (NY) A80370, dated March 13, 1996, regarding the tariff classification certain men's garments pursuant to the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your request is on behalf of Cypress Apparel Group. Customs has reexamined the decision and determined that the decision was in error. Customs believes NY A80370 should be revoked to reflect the correct tariff classification in subheadings 6107.21.0010 and 6107.91.0030, HTSUSA. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization), of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY A80370 was published on April 9, 1997, in the Customs Bulletin, Volume 31, Numbers 15.

FACTS:

The garments at issue are comprised of Styles 75042T, 85012T, and 95002T which are comprised of identical fabric. Style 75042T is a man's pullover garment constructed of 100 percent cotton knit jersey material. The garment contains a rib knit crew neckline, a V-shaped insert at the front neckline, short sleeves, an embroidered logo located on the left chest area, a triangular sweat patch at the back neckline, and a hemmed bottom with side slits. Style 85012T is a pair of men's pull-on pants made of 100 percent cotton knit jersey fabric. The pants contain an exposed jacquard elastic waistband, a one button fly front opening, two side seam pockets, and hemmed leg openings. The jacquard waistband depicts the words "Tommy Hilfiger". Style 95002T is a pair of men's pull-on shorts made of 100 percent cotton knit jersey fabric. The shorts contain an exposed jacquard elastic waistband, a one button fly front opening, two side seam pockets, and hemmed leg opening with side slits. The jacquard waistband contains the words "Tommy Hilfiger".

In NY A80370 Style 75042T was classified in subheading 6110.20.2065, HTSUSA, which is the provision for men's cotton knitted pullovers, other, other. In NY A80370 Style 85012T was classified in subheading 6103.42.1020, HTSUSA, which provides for men's cotton knitted trousers and Style 95002T was classified in subheading 6103.42.1050, which is the provision for men's cotton knitted shorts.

ISSUE:

Whether the subject merchandise is classifiable as sleepwear under Heading 6107, HTSUSA, or as outerwear garments under Headings 6110 and 6103, HTSUSA?

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 6107, HTSUSA, provides for, among other things, men's knitted nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two piece garments worn for sleeping. One piece garments used for sleeping may be classifiable as pajamas, but such garments must cover the entire torso. Other one piece garments used for sleeping are not classifiable as pajamas, instead, they fit into a residual provision within Heading 6107, HTSUSA, for similar articles. Garments classified in this residual provision include sleep shorts and sleep pants.

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in several court cases that dealt with 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. Finally, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of whether women's boxer-style shorts were classifiable as "outerwear" under Heading 6204, HTSUSA, or as "underwear" under Heading 6208, HTSUSA. The court stated the following, in pertinent part:

[P]laintiff's preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff's garments are merchandised sheds light on what the industry perceives the merchandise to be. Plaintiff also established that it is considered an underwear resource, that the Hong Kong factory which manufactured its merchandise does not produce outerwear * * *. Further, evidence was provided that plaintiff's merchandise is marketed as underwear. While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach.

You assert that the subject garments are sleepwear and should be classified as sleepwear under Heading 6107, HTSUSA. You maintain that the overall construction of the garments, including the loose-fit and the lightweight fabric construction make them particularly comfortable and suitable for sleeping. You have submitted pictures depicting the subject merchandise in the sleepwear department in several different retail stores. You emphasize the subject garments will be purchased, marketed, and sold as pajamas or sleepwear, and that at retail a display hangtag will be affixed to the garment indicating that the garments are part of the Tommy Hilfiger sleepwear collection. In support of your position, you refer to Headquarters Ruling Letter (HQ), 957862, dated December 21, 1995 and HQ 956755, dated November 10, 1994, for the proposition that in determining whether garments are designed, manufactured and used sleepwear, Customs would look to such factors as the physical characteristics of the garment, environment of the sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. In both of the cited cases, Customs determined that lightweight loose-fitting garments coupled with design, marketing, and purchasing data which supported classification as sleepwear were classifiable as sleepwear.

In Mast, supra, the court noted that, "most consumers tend to purchase and use a garment in the manner in which it is marketed." In light of the cited line of court cases, in addition to the overall construction of the garments which is associated with sleepwear, the advertising and marketing data submitted which indicate that the garments are intended to be used as sleepwear, Customs agrees that the garments will be principally used as sleepwear. Thus, the subject garments are classifiable under Heading 6107, HTSUSA.

You state in your submission that retail stores intend to offer the garments for sale either as a pajamas ensemble or with just the pajama bottoms being sold. Thus, in some instances, an equal number of tops and matching bottoms are sold and in other situations, retailers are buying more bottoms than tops. It is important to note that if the matching tops and bottoms are imported together in equal numbers, they will be classified as pajamas under Heading 6107, HTSUSA. If however, unequal numbers of tops and bottoms are imported together, the odd tops or bottoms without a matching piece will be classified in the residual subheading under Heading 6107, HTSUSA, for similar articles.

Recently, in International Home Textile, Inc. v. United States, Slip Op. 97-31, (Decided March 18, 1997) the court classified garments very similar in construction to the subject garments under Heading 6105, HTSUSA, and Heading 6103, HTSUSA, as tops and bottoms, respectively. It is important to note that the parties stipulated that the garments therein were considered "loungewear" and the issue was whether "loungewear" was classifiable as outerwear under Headings 6105 and 6103, HTSUSA, or as sleepwear under Heading 6107, HTSUSA. The court further found during trial that the garments were primarily used for lounging and not for sleeping. The facts of the instant case are distinguishable from the facts of International Home. The importer in this instance is contending that the subject garments are primarily used for sleeping and has submitted data evidencing that the garments are designed, marketed, and sold as sleepwear. The importer does not assert that the instant garments are being worn primarily for lounging and the data that he has submitted supporting his claim that the garments are sleepwear has been instrumental in Customs belief that the subject garments are properly classifiable as sleepwear. If there was evidence that the subject garments were primarily being worn for lounging, then reliance on International Home would be helpful in determining the proper tariff classification. There was no evidence in International Home that the garments therein were considered as any other commodity other than loungewear.

HOLDING:

Based on the foregoing, if Style 75042T is imported in equal quantities and sizes with either Style 85012T or Style 95002T, they are classified as pajamas in subheading 6107.21.0010, HTSUSA, which is the provision men's knitted pajamas, of cotton. The applicable rate of duty is 9.3 percent ad valorem and the textile restraint category is 351. If the bottoms are imported separately or without matching tops of corresponding quantities and sizes, the garments are classified in subheading 6107.91.0030, which provides for men's other knitted sleepwear. The applicable rate of duty is 9.1 percent ad valorem and the textile restraint category is 351. Customs is assuming these garments are subject to the Column 1 General rates of duty.

NY A80370 is hereby revoked.

In accordance with section 625, this ruling will become effective 60 days from its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

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

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