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HQ 962828

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March 2, 2000

CLA-2 RR:CR:TE 962828 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6204.62.4020; 6204.62.4055; 6206.30.3040

Allison M. Baron, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy-five Broad Street
New York, N.Y. 10004

RE: Request for Reconsideration of NY D86885; loungewear; sleepwear

Dear Ms. Baron:

This is in reply to your letter of April 27, 1999, requesting reconsideration of the classification of three of four garments classified in New York Ruling Letter D86885, dated February 19, 1999. Your request is made on behalf of your client, Donna Karan Intimates, a division of Wacoal America, Inc.

FACTS:

The three garments under review in your request for reconsideration were described in NY D86885 as follows:

Style 416002 is a pair of women’s capri pants. The garment features a fully elasticized covered waistband and extends to mid-calf.

Style 416003 is a pair of women’s boxer-styled shorts. The garment features a covered elasticized waistband and a closed fly-front.

Style 411037 is a sleeveless shirt featuring a pointed collar, a breast pocket, and a shirttail bototm [sic] and seven buttons securing the full front opening.

You state that all of the garments are constructed from 100 percent cotton woven fabric and that they are designed, marketed and sold as part of DKNY Underwear’s sleepwear line.

Customs classified style 416002 under subheading 6204.62.4020 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as women’s woven trousers of cotton, style 416003 under subheading 6204.62.4055, HTSUSA, as women’s woven shorts of cotton, and style 411037 under subheading 6206.30.3040, HTSUSA, as women’s woven blouses of cotton.

You maintain that all three garments should be classified as sleepwear under heading 6208, HTSUSA.

We note that your client does not seek reconsideration of the classification of style 462037 in NY D86885, as that garment was only imported one time.

ISSUE:

Are the three garments described above classifiable as pajamas or sleepwear under heading 6208, HTSUSA, or under heading 6204, HTSUSA, and heading 6206, HTSUSA, as outerwear garments?

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. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied, in their appropriate order.

Classification of garments as sleepwear is based upon use. Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that in the absence of special language or 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 determining the classification of garments submitted to be sleepwear, Customs considers factors discussed in several decisions by the Court of International Trade (Ct. Int’l Trade). In Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff'd 786 F.2d 1144 (Ct. of App’ls for Fed. Cir. 1986) the Court of International Trade cited several lexicographic sources, among them Webster's Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed."

The court determined that the garment at issue in that case was designed, manufactured and used as nightwear and, therefore, was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 Ct. Int’l Trade 224 (1987), the court ruled that the garments at issue in that case were manufactured, marketed and advertised as nightwear and were chiefly used as such.

Additionally, as the court pointed out in Mast, "the merchandise itself may be strong evidence of use”, Id. at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963), and Customs has adopted that view as the crucial factor in the classification of a garment.

Thus, when ruling on similar merchandise in the past, Customs policy has been to carefully examine the physical characteristics of the garment in question. When this has not proven substantially helpful, we consider other extrinsic evidence 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, i.e., 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 factor 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 v. United States, 16 Ct. Int’l Trade 407 (1992).

With these points in mind, Customs has reviewed your claim that the three garments at issue are consistent with the current industry trend of creating sleepwear possessing designers characteristics of causal wear which have been modified for comfort and design while sleeping. For example, you state that the top and bottoms are “roomier” than similar outerwear which makes them well suited for sleeping, i.e., style 411037 has oversized arm holes and style 416003 has a large “seat” which “would make this garment particularly unflattering were it to be worn as outerwear.” You further state that this line of “luxury” sleepwear is intended to provide the DKNY customer with the same quality of garment for sleeping that she is used to wearing during the day.

Upon examining the garments, we agree with you that they possess “designers characteristics of causal wear”, but we do not agree with you that they are not suitable to be worn as outerwear. In light of your claims that the garments are sleepwear, however, we will look at evidence pertaining to the marketing, advertising and sale of the articles.

In that regard, you assert that the garments are designed, marketed and sold as part of DKNY Underwear’s sleepwear line and are sold only in DKNY Underwear departments in the sleepwear area of large department stores or comparable retailers. To support
your claims, you submitted copies of photographs of various stores with DKNY Underwear departments and a letter from a buyer for the Nordstrom department store, which reads, in relevant part:

Nordstrom purchases all of Wacoal’s products [including DKNY Underwear] for the intimate apparel and sleepwear departments. All of Wacoal’s products are displayed in our stores in the intimate apparel and sleepwear area and are sold to the consumer as intimate apparel and sleepwear. Wacoal’s products are not merchandised or sold in any other departments in our store.

Additionally, you also state that the DKNY Underwear line is a licensee of the Donna Karan Company and the DKNY name on the hangtag of the garment suggests to the consumer that it is a luxury article. Moreover, the word “underwear” [appearing on the hangtag] distinguishes the garment and demonstrates to the consumer that it is intimate apparel.

Since the three garments possess “designers characteristics of causal wear” and, in our opinion, are suitable for use as such, the mere fact that they will be sold in the intimate apparel departments of stores does not persuade us that they are classifiable as sleepwear. It is well established that intimate apparel departments include merchandise other than intimate apparel. In fact, as noted in HQ 955341, dated May 12, 1994, “virtually any issue of BODY FOUNDATIONS AND INTIMATE APPAREL, the trade publication for the intimate apparel business, will demonstrate that intimate apparel departments market a wide variety of ‘leisurewear’ (i.e., loose, comfortable clothing worn in or outside the home in a casual environment).”

Furthermore, 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 and rulings cited therein; HQ 952105 of July 21,1992; HQ 085672 of October 29, 1989; and HQ 955088 of December 14, 1993. Customs has rejected claims that imported merchandise should be classified solely on how a company characterizes itself, its product line or where it locates its business. HQ 961185, dated June 11, 1999.

Finally, in International Home Textile, Inc. v. United States, Ct. Int’l Trade Slip. Op. 97-31, dated March 18, 1997, aff’d 153 F. 3d 1378 (Ct. of App’ls for Fed. Cir.1998), the Court of International Trade held that articles encompassed under heading 6107 (underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles) are characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing and dressing). The court pointed out that loungewear, on the other hand, may be worn at informal social occasions in and around the home, and for other nonprivate activities such as watching movies with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car,
walking the dog, etc. It is important to note that the parties stipulated that the garments in International Home Textile were considered “loungewear” and the issue was whether “loungewear” was classifiable as outerwear or as sleepwear. The court found that the garments in that case were primarily used for lounging and not for sleeping.

In this case, there is nothing about the styling, fabric, cut, or construction of the three garments at issue which indicate that they were designed primarily for sleeping, or which would preclude them from being worn at informal social occasions in and around the home and for other nonprivate activities discussed in International Home Textile.

Accordingly, the garments were correctly classified as outerwear garments in NY D86885.

HOLDING:

NY D86885 is affirmed. Style 416002 is classifiable under subheading 6204.62.4020, HTSUSA, as women’s woven trousers of cotton. Style 416003 is classifiable under subheading 6204.62.4055, HTSUSA, as women’s woven shorts of cotton. The general column one rate of duty for garments entered under those tariff provisions is currently 17 percent ad valorem, and the textile category is 348.

Style 411037 is classifiable under subheading 6206.30.3040, HTSUSA, as women’s woven blouses of cotton. It is dutiable at the general column one rate of 15.8 percent ad valorem, and the textile category is 341.

The designated textile and apparel categories 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 that your client 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, your client should contact the 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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See also:

• Tariff No.: 6204.62.40 - Women's or girls' trousers, breeches and shorts, not knitted or crocheted, of cotton, nesoi
• Tariff No.: 6206.30.30 - Women's or girls' blouses and shirts, not knitted or crocheted, of cotton, nesoi