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HQ 965113




June 29, 2001

CLA-2 RR:TC:TE 965113 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.21.0010

Port Director
JFK Airport
Building 77
Jamaica, NY 11430

RE: Request for Internal Advice

Dear Port Director:

This is in response to an Internal Advice, dated June 26, 2001, submitted by Customs Area Director at JFK International Airport in reference to merchandise entered by Coudert Brothers on behalf of Allegiance Apparel Group, regarding the classification of pajamas/sleepwear under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”).

FACTS:

Two samples of the subject merchandise were submitted to Customs for review, Style BB107 and Style BB108, each of which contains a 100 percent cotton knit long sleeve top and a 100 percent cotton woven flannel pants.

The pants are woven from 100 percent cotton, with a single button fly front, and have an enclosed elastic waistband, a drawstring , and hemmed bottoms. The flannel fabric used to make the pants is decorated in a plaid pattern. The pants are of a soft fabric construction and provide a loose fit for extra comfort. The pants are fitted with side seam pockets.

The knit tops are made of a cotton fabric with a three button Henley neckline. The sleeves are of an extended length, and are finished with rib-knit cuffs. The tops are each a solid color which compliments the companion bottom.

The knit top and pants are imported together in acetate boxes, on which the garments are described as a “Bill Blass Men’s Sleepwear Set” or “Men’s 2-Piece Sleepwear Set” or “Men’s Sleepwear Set.”

The boxes are decorated with either a picture of a man wearing the garments seated on a sofa, or standing with his hand on what appears to be a side table. The sealed acetate boxes are not designed to be opened until after purchase by the ultimate consumer. You have stated that the garments will only be imported, marketed and sold in the acetate boxes, and will not be sold separately.

Furthermore, you have stated that the pants and tops are imported from Pakistan in different colorways depending on the style number. Style BB107 is said to be imported in four colorways: Grey Heather (light grey top, navy blue/ivory plaid pants), Oatmeal Heather (light grey top, green/olive/white plaid pants), Charcoal Heather (dark grey top, medium grey/black/white plaid pants) and Navy Heather (navy blue top, navy blue/medium blue/ white plaid pants). No information was provided regarding the colorways for Style BB108.

ISSUE:

Whether the subject merchandise is classifiable as men's sleepwear in heading 6107 or 6207, HTSUSA, or as men's loungewear in heading 6203, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The competing headings under the HTSUSA which must be considered for classification of the subject merchandise include: headings 6107 or 6207, which each provide for inter alia, men’s nightshirts, pajamas and similar articles if it is determined that the subject garments are sleepwear; heading 6203, which provides for, inter alia, men’s trousers and shorts if it is determined that the subject bottoms are classifiable as loungewear; and heading 6105, which provides for, inter alia, men’s knit shirts if it is determined that the subject tops are classifiable as loungewear.

Determination of the HTSUSA classification of the subject merchandise requires an understanding of terminology which is germane to the issue and utilized by the HTSUSA. In a recent informed compliance publication, Customs provided basic definitions of textile terms which are commonly utilized in the HTSUS and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. In regards to the classification of sleepwear and loungewear, Customs provided analysis of the various considerations and issues which must be considered in a section entitled “Notes on Sleepwear” which stated:

Classification of garments as men's and boys' “nightshirts and pajamas” or “sleepwear” of headings 6107 and 6207, or women's or girls' “nightdresses, pajamas and similar articles” of headings 6108 and 6208 (hereinafter referred to collectively as “sleepwear”), is based upon the principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind. In determining whether a particular garment is sleepwear, the garment itself may be strong evidence of use. However, when presented with a garment that is somewhat ambiguous and not clearly recognizable as sleepwear, Customs will consider other factors such as environment of sale, advertising and marketing, and recognition in the trade of virtually identical merchandise. While certain documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, etc., will be examined, they may also be considered “self serving.”

Although consideration is given to the way in which merchandise is marketed and sold, intimate apparel or sleepwear departments often sell a variety of merchandise besides sleepwear and intimate apparel, including garments intended to be worn as outerwear. The manner in which an article is sold and marketed is weighed in conjunction with other factors such as the physical characteristics of the garment.

Sleepwear is characterized by a sense of privateness or private activity. On the other hand, garments that are not sleepwear may fall into various fashion categories, including “loungewear” or “leisure wear,” which are loose, comfortable casual clothes that can be worn in a variety of settings. Loungewear may be worn at informal social occasions in and around the home, and for other non-private 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. Loungewear garments will not be classified in the sleepwear headings, but in specific headings for the named articles. For example, loungewear shorts will be classified in the headings for shorts.

Certain garments are also marketed as having multiple uses that may include sleeping. Such garments would not be classified as sleepwear, but in the specific headings for the named articles.

See U.S. Customs Service, What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUS 34 Cust. B. & Dec. 52, 153 (Dec. 27, 2000).

In this informed compliance publication, sleepwear is further defined as:

Sleepwear (men’s and boys’) (6107, 6207) - is a group of garments that are worn to bed for sleeping, which are not covered by the provision for nightshirts and pajamas. Refer also to the introductory note entitled “Notes on Sleepwear.” See also “Nightshirts and pajamas (men’s and boys’).”

Nightshirts and pajamas (men’s and boys’) (6107, 6207) - is a group of garments that are worn to bed for sleeping. Pajamas consist of two components covering the upper and lower torso. The upper part may be a pullover or shirt, and the lower part may be shorts or pants. The lower part sometimes encloses the feet. Nightshirts are long one-piece shirt-style or pullover-style garments, worn to bed for sleeping. Men’s and boys’ sleep tops and bottoms imported separately may be classified in the separate “sleepwear” provisions of heading 6107 or 6207, as appropriate. Refer also to the introductory note entitled “Notes on Sleepwear.” See also “Sleepwear (men’s and boys’).”

Id.

Furthermore, in circumstances where the identity of a garment is ambiguous for classification purposes, reference to The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, (“Guidelines”) is appropriate. The Guidelines were developed and revised in accordance with the HTSUSA to ensure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles.

The Guidelines state that “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.” See Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE13/88 at 24 (Nov. 23, 1988).

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 determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade (CIT) which are often cited when discussing sleepwear. In Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 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 Ct. Int’l Trade 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, 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.

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). Customs believes that the subject merchandise presents an ambiguous classification issue. The knit tops and woven bottoms have features which can be associated with either sleepwear or loungewear. Customs has issued innumerable rulings on whether similar garments are principally used as sleepwear or loungewear. These rulings often hinge on whether a physical examination of the garment reveals features which make the garments suitable for modesty purposes or are designed for use in non-private activities. (See International Home Textile, Inc. v. U.S., No. 97-31, slip op. at 6 (Ct. Intl. Trade March 18, 1997)) for discussion of activities in which loungewear can be utilized.) For instance the subject pants are of a lightweight soft fabric construction, provide a loose fit for extra comfort, and have a one button fly closure and in addition the subject top is of a very soft nature.

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 self-serving as was noted by the court in Regaliti, Inc. v. United States, 16 Ct. Int’l Trade 407 (1992).

In this regard, importer’s counsel has indicated that the subject merchandise will be packaged, marketed, displayed and sold in a sealed acetate box, with descriptive wording and photograph on the front. Counsel for Allegiance has also submitted information that this company is in the business of selling sleepwear exclusively. However this claim is unsupported.

In this instance Customs believes the subject merchandise is sleepwear as evidenced by the loose fit one button fly closure of the pants and the soft fabric of the tops. Further, the sealed acetate box for packaging and store display as well as the prominent advertising depicting the garments as “Men’s 2-Piece Sleepwear Set” and “Men’s Sleepwear Set” when considered in totality with the garments themselves are persuasive evidence. You have stated in your submission to Customs “the merchandise will be imported in equal numbers of matching tops and bottoms, as they are boxed together. They match by size and are coordinated by style, coloring and design.”

Although these features can also be found on loungewear, given the totality of these features in conjunction with the packaging of the subject merchandise, Customs believes that sleepwear is a more appropriate classification in this instance.

In this instance, the subject merchandise consists of both a top and a bottom imported together which jointly create a unit which is commonly and commercially known as “pajamas.” However, the tops are knit and therefore potentially render the pajamas classifiable in heading 6107, HTSUSA, and the bottoms are woven and therefore potentially render the pajamas classifiable in heading 6207, HTSUSA. The potential classification in two separate HTUSUSA headings raises the application of Legal Note 13 to Section XI, HTSUSA which provides:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.

The language "unless the context otherwise requires" is of particular importance in this classification matter.

The ENs to Chapters 61 and 62 HTS, provide that for “application of Note 13 to Section XI, garments of different headings are to be classified in their own headings even if put up in sets for retails sale. This, however, does not apply to garments put up in sets which are specifically mentioned in the heading texts, for example, suits, pajamas, swimwear.” (emphasis added).

Based on these ENs, Customs believes the intent of the drafters of the Harmonized System was to classify pajama tops and pajama bottoms which potentially could be classified in separate tariff headings due to fabric construction as “pajamas.” This affects visa/quota treatment of the subject garments. (See U.S. Customs Service, What Every Member of the Trade Community Should Know About: Classification of Sets Under the HTS 33 Cust. B. & Dec. 51(Dec. 22, 1999).) Given that the goods are described in part by two different HTS headings, the determination of where this set is classified requires review of GRI 3 which provides, in pertinent part:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Counsel has argued that the subject merchandise should be considered a composite good based upon HQ 956492, dated September 19, 1994, in which Customs classified a women’s two piece pajama set consisting of a 100 percent cotton knit pullover top and a 100 percent polyester woven long pant bottom. In determining that the garments were properly classified as pajamas, Customs also considered whether the garments were composite goods or sets put up for retail sale.

We are reviewing whether the set and composite good analysis in HQ 956492 is correct. For the instant garments, the correct application of Legal Note 13 to Section XI requires that these garments be classified as a GRI 1 pajama set.

As a GRI 1 set, Customs must determine whether the knit top or woven pants impart the essential character. Since the fundamental nature of pajamas, as stated infra, requires both a top and a bottom, and each is equally important to the creation of the whole, ie, the pajamas, Customs believes that an essential character determination is impossible to establish and therefore classification must be based on GRI 3(c) which states:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Pursuant to GRI 3(c), the merchandise is properly classified in heading 6207, HTSUSA.

HOLDING:

The subject merchandise is properly classified in subheading 6207.21.0010, HTSUSA, as “Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Nightshirts and pajamas: Of Cotton: With two or more colors in the warp and/or the filling: Men’s.” The general column one rate of duty is 9.1 percent ad valorem. The designated textile restraint category is 351.

This decision is rendered pursuant to 19 CFR § 177.9(2) which provides:

Each ruling letter setting forth the proper classification of an article under the Harmonized Tariff Schedule of the United States will be applied only with respect to transactions involving articles identical to the sample submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter.

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 the importer 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 the 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 applicable to textile merchandise, the importer should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

You are to apply this internal advice to any unliquidated entries of this merchandise and likewise process any outstanding protests on this merchandise in accordance with this ruling. You are to mail this decision to the counsel for the importer involved in this internal advice no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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