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HQ 960890




November 17, 1999

CLA2 RR:CR:TE 960890 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6105.10.0010; 6110.20.2065

Port Director
200 East Bay Street
Charleston, South Carolina 29401

RE: Protest No 1601-97-100188; Classification of men’s garments; sleepwear vs. loungewear

Dear Sir:

This is in response to the request for further review of Protest No. 1601-97-100188 timely filed on August 6, 1997, by Host Apparel, Inc. concerning the proper classification of various styles of men’s knit garments which were imported from Turkey through the Port of Charleston. The protest involves knit shirts which were classified when entered on January 31, 1997, as loungewear in subheading 6105.10.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer has protested the classification and claims the proper classification of these garments is as sleepwear under subheading 6107.91.0030, HTSUSA or alternatively as other garments in subheading 6114.20.00, HTSUSA.

FACTS:

Samples were submitted along with style sheets. Also submitted was a summary sheet which Customs requested in an effort to clarify the style numbers of the protested garments. We have used this summary sheet to identify the styles protested on each entry. Since the last three digits of the style number refer solely to the color of the garment, we have omitted these three digits from the style numbers used herein.

The styles involved in the above protest are listed below.

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SHIRTS:

*Style F125 (same as Style F468) is a men's shirt constructed from 67 percent cotton, 33 percent polyester double knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; short sleeves with rib knit cuffs; and a hemmed bottom with side slits.

* Style F140 is a men's pullover garment constructed from 100 percent cotton, double knit fabric which measures more than 9 stitches per 2 centimeters counted in the horizontal direction. The garment has a V- neckline with a rib knit spread collar; short sleeves with rib knit cuffs; and a hemmed bottom with side slits.

* Style F294 (same as Style F468) is a men's shirt constructed from 100 percent cotton, double knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; short sleeves with rib knit cuffs; and a hemmed bottom with side slits.

*Style F468 is a men's shirt constructed from 67 percent cotton, 33 percent polyester double knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; short sleeves with rib knit cuffs; and a hemmed bottom with side slits.

The shirts were classified in subheading 6105.10.0010, HTSUSA, dutiable at the rate of 20.6 percent ad valorem and subject to textile category 338

The importer is of the opinion that the merchandise should be properly classified in subheading 6107.91.0030, HTSUSA, with duty at the general column one rate of 9.2 percent ad valorem and subject to textile category 351. In the alternative, classification is sought in subheading 6114.20.00, HTSUSA, with duty at the column one rate of 11.3 percent ad valorem.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear under Heading 6107, HTSUS, or as outerwear garments under heading 6105, 6110, or 6114, HTSUS, as appropriate?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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

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classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Heading 6107, HTSUS, provides for, inter alia, men’s nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally twopiece garments worn for sleeping. Onepiece tops used for sleeping, which are not classifiable as nightshirts fall into a residual provision within heading 6107, HTSUS, for similar articles. Heading 6114, HTSUS, where classification is sought as an alternative, provides for other garments, knitted or crocheted. If it is determined that the subject tops are classifiable as outerwear or loungewear, the applicable heading for Styles F125, F468, and F294 is heading 6105, HTSUS, which provides for men’s shirts, and the applicable heading for Style F140 is heading 6110, HTSUS, which provides for, among other things, men’s pullovers.

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases that addressed sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 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 boxerstyle shorts were classifiable as “outerwear” under heading 6204, HTSUS, or as “underwear” under heading 6208, HTSUS. 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.*** 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.

Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 97-31, March 18, 1997, which classified garments similar to those at issue here as loungewear in heading 6105, HTSUS. The court therein stated:

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Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court finds no basis in the exhibits, the witness testimony, or the loungewear’s construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn at informal social occasions in and around the home, and for other individual, nonprivate activities in and around the house e.g., watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like....

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 selfserving as was noted by the court in Regaliti, Inc. v. United States, 16 C.I.T. 407 (May 21, 1992). 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 HQ 955341 of May 12, 1994.

Counsel indicates that the importer, Host Apparel, Inc., is a sleepwear/underwear company and that Host’s garments are sold throughout the country to underwear and sleepwear departments, and not to sportswear departments or specialty shops. Counsel argues the garments are sold and used as sleepwear and loungewear, i.e., for use in the privacy of one’s home. It is Host’s position that the garments are of a thin, cotton, clinging, jersey fabric and are not outerwear.

Customs does not find the fact that the garments at issue here are sold by Host Apparel to underwear and sleepwear departments of particular significance. What we do find of importance is the garments themselves and the manner in which the garments will be presented to the public.

Having examined the tops at issue, we find nothing in their construction, fabric or styling to indicate that they are designed primarily for wear to bed. In fact, the fabrics and styling are suggestive of leisure wear or loungewear.

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Other Headquarters Rulings have consistently determined that where a garment does not display features recognizable as "sleepwear" those garments will not be given a sleepwear classification. In HRL 951032, dated May 7, 1992, a National Import Specialist examining a similar garment imported by your client stated:

...there is nothing about the styling, fabric, cut, or construction of these garments which indicate that they were designed primarily for wear to bed. Rather, the garments are designed and constructed in the manner and style of knit sportswear. We believe that these garments are 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 multipurpose garments rather than garments designed primarily to be worn for sleeping.

Although the garments at issue here may be worn to bed for sleeping, it is our opinion that their principal use is for “home comfort” and lounging. These tops can easily make the transition from inside the home (in a private setting) to outside the home (and a more social environment). In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade 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.”

We also note the manufacturers invoices identify the garments, other than Style F140, as Henley shirts. In addition, all the samples submitted are made of fabric heavy enough for outdoor use even in cool weather. The importer has provided no advertising showing these garments as sleepwear, nor are the garments identified anywhere on the invoices as sleepwear.

The Customs National Import Specialist for this merchandise has provided us with numerous advertising materials which demonstrate that the trend today for the type of garments in question is for mix and match loungewear as shown by the following sampling of the articles we received. For example, in a number of J.C. Penny Catalogs, garments are advertised as cotton and polyester thermal knit loungewear consisting of a Henley style top trimmed with plaid flannel, long pants with no fly and jam shorts with plaid flannel trim on the waistband. The garments are sold and priced separately to be used as mix and match loungewear coordinates. A September 1996 Kohl’s advertisement featured a Henley style top and a pair of pants with plaid trim on the shirt placket and waistband advertised as loungewear. The advertising copy reads “Ideal casual wear to get comfy in!” Pajamas were advertised separately. In an August 1996 Target advertisement, a Henley top or Vnotch Tee, shorts and pants are advertised as mix and match loungewear coordinates. A summer 1996 Marshall Field advertisement shows college logo loungewear, including a thermal knit boxer with exposed elastic waistband and thermal knit Henley style shirt, advertised as loungewear separates.

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 of the type which are clearly

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being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are presented as multipurpose garments and, in fact, nothing 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.

An article on the underwear/loungewear trade in the Daily News Record, of October 14, 1994, noted the trend towards underwear/loungewear as activewear and gymwear. The article states that:

Manufacturers that are adopting a sportswear-driven approach to underwear and loungewear are expected to ring up big business for spring ‘95, as versatile briefs, boxers, T-shirts, lounge tops and longer, looser lounge pants fuel the furnishings field...underwear and loungewear can double as activewear/gymwear...Knit bottoms are now being worn externally...because they offer much more versatility and have a dual purpose...Loungewear is not just homewear anymore.

In discussing how loungewear is promoted and displayed at the retail level, the article continued:

The loungewear area is made up of coordinated separates...The whole concept is towards coordinated separates that are...sold as separates to give the consumer the option to mix and match. Lounge pieces and coordinated separates have a much more diverse usage factor.

An article supplied by the NIS from the Daily News Record, dated August 28, 1995, on loungewear reads:

Loungewear is changing the way men dress at home, after work and on the weekends. Here SLOUCHERS by HAMPTON INDUSTRIES’ version of what to wear afterhours  a natural and navy striped cotton pique crosstie lounge shirt and natural cotton pique lounge shorts.

Based on our examination of the garments supplied, we find that they are loungewear, i.e., loose, casual clothes that are worn in the home for comfort. Their fabric, construction and design are suitable for the type of nonprivate activities named in International Home Textile, Inc. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for “home comfort” and lounging. In addition, all the samples submitted are made of fabric heavy enough for outdoor use. It is our view that the garments are more likely to give the ultimate consumer the idea that they are items of general apparel, rather than sleepwear.

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

We note that although protestant seeks an alternative classification for the garments in subheading 6114.20.00, HTSUSA, they have provided no information, reason, or justification for that claim.

GRI 3(a) states in part that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. Classification turns on which heading is more definite or specific. The more specific heading will prevail over a more general heading. Courts have applied the “more difficult to satisfy” test to determine the more specific of competing tariff provisions. See Mitsui Petrochemicals (America), Ltd. v. U.S., Slip Op. 97108 (CIT 1997), and Orlando Food Corp. v. US, Slip Op. 971335 (Fed. Cir. 1998), citing United States v. Siemens Am., Inc., 68 CCPA 62, 68, 653 F.2d 471, 477 (1981).

In this case, headings 6105 and 6110 contain eo nomine provisions specifically describing the types of garments classified thereunder. Heading 6114, on the other hand, is a “basket” provision providing for “other garments, knitted or crocheted.” Headings 6105 and 6110 clearly provide more specific descriptions for the shirts at issue here than heading 6114, HTSUS.

HOLDING:

The Henley shirts with button plackets (Styles F125, F294 and F468) are classified under subheading 6105.10.0010, HTSUSA, which provides for “Men’s or boys’ shirts, knitted or crocheted: Of cotton: Men’s.” The applicable 1997 general column one rate of duty is 20.6 percent ad valorem. The V-neck garment (Style F140) is classified under subheading 6110.20.2065, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other: Other: Other: Men’s or boys.” The applicable 1997 general column one rate of duty is 20.6 percent ad valorem. All of the garments are assigned textile quota category 338.

The protest under consideration should be DENIED.

In accordance with Section 3A (11) (b) of Customs Directive 0993550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any

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reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make this decision available to Customs personnel, the public on the Customs Home page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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