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HQ 962867




May 1, 2002

CLA2 RR:CR:TE 962867 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6106.10.0010; 6104.62.2030

Port Director
U.S. Customs Service
4341 International Drive, suite 600
Atlanta, GA 30354

RE: Application For Further Review of Protest No. 1704-99100028; Classification of Women's Garments; Pajama Sets vs. Loungewear

Dear Sir:

This is in response to an Application for Further Review of a Protest (AFR) filed on behalf of T. J. Lawford Associates, Inc. It is claimed that prior to importation the samples were presented to Customs in Charleston, and a verbal classification of sleepwear was provided. The protestant timely filed the AFR on January 19, 1999, and headquarter’s review is warranted pursuant to 19 C.F.R. §174.24(a).

The Protest contests a Notice to Redeliver alleging that the correct classification for the tops is under subheading 6106.10.0010, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and the shorts under subheading 6104.62.2030, HTSUSA. The proposed change in classification results in the merchandise (both tops and shorts) requiring different visas than those presented at entry.

FACTS:

On December 7, 1998, and December 9, 1998, the Protestant entered into the United States 237 dozen women's two-piece garments, style 5406-S100, described as a pajama set of french terry. The merchandise was released from Customs custody on the same day.

After Customs examined garments from the instant shipments, two CF4647's, Notice to Redeliver, and change in classification to women's tops and shorts, were issued on December 21, 1998. The Notice to Redeliver required the protestant to submit separate textile visas for the tops and shorts. The protestant, however, maintains that the garments are women's sleepwear components entered correctly as pajama sets.

The garments under protest consists of a knit upper body garment and shorts constructed from 100% knit cotton "French terry" fabric.

The sleeveless upper body garment extends approximately 19 inches from the back neckline to the hem. It has a rounded neckline; three-button partial placket opening; and hemmed bottom. The shorts are pull-on; have a covered elasticized waistband; two sewn-in pockets at hip level; and hemmed leg openings.

The protestant indicates that the "tops" and "shorts" are imported in sets as matching sleepwear (pajama) tops and sleepwear (pajama) bottoms of corresponding sizes as composite goods, put up and sold as a whole, not as separate parts. Protestant contends that the controlling use of the garments will be as sleepwear.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear under Heading 6108, HTSUS, or as outerwear garments under heading 6106, HTSUS and 6104, 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 classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

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 6103, HTSUS. The court therein stated:

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....

We are advised that the goods were purchased based on "picture sets" which stated "Sleepwear Coordinates", "Pajama Set", and "Sleep Shirt" to be sold in the lingerie department. We are further advised that a matching robe can be purchased separately. It is admitted that the garments can be worn for other than sleeping, but that the controlling use is principal use, and that is as sleepwear. Protestant states that the garments were designed, manufactured, marketed, and intended for use as sleepwear.

We have physically examined the garments at issue and do not agree that the physical characteristics of the garments, nor the manner in which they have been designed, marketed or sold are limited to sleepwear or intimate apparel. The physical characteristics of the garments are such that they can easily be used as either sleepwear or as non-intimate apparel. The fabric is used for both types of garments. The appearance of these garments is, in fact, ambiguous. Although the protestant has claimed the garments were designed as sleepwear, no specific information concerning the design was submitted. Nothing about the design or appearance of the garments makes them unsuitable for use as sleepwear, with the possible exception of the pockets on the shorts. However, the counter argument that nothing about the design or appearance makes them unsuitable for use as general apparel is equally true. In such circumstances, the principal use is determined by the manner in which the garments are designed, marketed and sold.

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 CIT 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.

It appears from the information provided that T.J. Lawford sold the garments to Steinmart. The protestant has provided "picture sets" which contain photocopies of pictures of the garments in question, on pages that are entitled "Sleepwear Coordinates." Below the garments is language describing them as "pajama set." However, on the same page, in the upper left-hand corner are the words "Steinmart" and "Holiday 98". We note that the garments purchased by Steinmart were purchased by the lingerie buyer, referred to as pajamas on the purchase orders, and sold in the lingerie department of the Steinmart stores.

When considered with other information presented, Customs does not find the fact that the garments at issue here were bought by the lingerie buyer of Steinmart 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.

The garments will be imported with a hangtag stating “short set”. The hangtag is to remain with the garment at retail sale. In Mast, 92 CIT 549, at 551, the court pointed out that the expert witnesses in that case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." The tag is a factor to be considered in determining how this garment is marketed and likely to be used by purchasers, though it is not determinative in and of itself.

The merchandising submitted, in our view, is more likely to give the ultimate consumer the idea that they are items of general apparel, rather than sleepwear. The information submitted does not show that the garments are merchandised to the consumer as garments to be worn exclusively, or even principally, as sleepwear.

It is also conceded that the garments may be used as outerwear (albeit inside the home). It is however, argued that this use would be a fugitive use. 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.” Because the submitted samples are capable of being used to lounge around the home does not change the importer's claim that their principal use and character is as sleepwear.

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 clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are multipurpose garments and nothing provided to Customs suggests the garments are presented to consumers as 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.

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. These garments can easily make the transition from inside the home (in a private setting) to outside the home (and a more social environment). In addition, the samples submitted are made of fabric heavy enough for outdoor use.

Taking into consideration all of the information before us, especially the garments themselves, Customs believes these garments are properly classified as outerwear garments, not as sleepwear.

HOLDING:

The upper body garment is classifiable in subheading 6106.10.0010, HTSUSA, which provides for “Women's or girls' blouses and shirts, knitted or crocheted: Of cotton: Women's.” The applicable column one general rate of duty is 20 percent ad valorem and the textile quota category is 339.

The shorts are classified in subheading 6104.62.2030, HTSUSA, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of cotton: Other: Shorts: Women’s.” The applicable column one general rate of duty is 15.3 percent ad valorem and the textile quota category is 348.

Therefore, based on the foregoing discussion, you are instructed to DENY the protest.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, 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 reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision, 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
Commercial Rulings Division

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