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HQ 965572




August 21, 2002

CLA2 RR:CR:TE 965572 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6104.62.2011; 6104.62.2030; 6110.20.2075; 6114.20.0010

Janet A. Forest, Esq.
Miller & Chevalier
655 Fifteenth Street, NW
Washington, DC 20005-5701

RE: Reconsideration of NY H81928, H81929, and H81930, all dated July 3, 2001; Classification of Women's Garments; Sleepwear vs. Loungewear

Dear Ms. Forest:

This is in response to your letter of February 19, 2002, requesting reconsideration of three New York Ruling Letters (NY) H81928, H81929, and H81930, all dated July 3, 2001, issued in response to your correspondence dated May 31, 2001, requesting a binding tariff classification for women's garments. In support of your request for reconsideration you submitted a number of samples, and some additional information on marketing and sale of the merchandise.

FACTS:

NY H81928 classified two samples, style 76299 and style 76300. Style 76299 is described as a pair of 100% cotton knit terry sleep pants. The garment is a pull-on pant with an elasticized plain knit waistband with a functional drawstring, and hemmed leg openings. Style 76300 is described as a 100% cotton knit terry sleeveless sleep top. It has 1/4-inch shoulder straps, a square neckline in front, and a plain hemmed bottom. The upper portion of the back of the garment extends straight across from the side seam to the side seam. Knit capping is sewn along the entire top of the garment and forms the shoulder straps on the garment. The pants were classified in subheading 6104.62.2011, of the Harmonized Tariff Schedules of the United States Annotated (HTSUSA), which provides for women's knit cotton trousers. The pants were found to be dutiable at the 2001 general rate of 15.4 percent ad valorem. The top, style 76300, was classified in subheading 6114.20.0010, HTSUSA, which provides for women's knit cotton tops. The top was found to be dutiable at the 2001 general rate of 11 percent ad valorem.

NY H81929 classified two samples, style 76271 and style 72317. Style 76271 is described as a pair of 100% cotton knit sleep shorts. The garment is a pull-on short with an elasticized waistband and hemmed leg openings. Style 72317 is described as a 100% cotton knit sleep top. It is a pullover with rounded, capped neckline, long sleeves with rib knit cuffs, and a plain, hemmed bottom. The shorts were classified in subheading 6104.62.2030, HTSUSA, which provides for women's knit cotton shorts. The shorts were found to be dutiable at the 2001 general rate of 15.4 percent ad valorem. The top, style 72317, was classified in subheading 6110.20.2075, HTSUSA, which provides for women's knit sweaters, pullovers and similar articles of cotton. The top was found to be dutiable at the 2001 general rate of 17.8 percent ad valorem.

NY H81930 classified two samples, style 69410 and style 69413. Style 69410 is described as a pair of 100% cotton knit sleep pants. The garment is a pair of pull-on pants with an elasticized waistband with a functional drawstring, and hemmed leg openings. Style 69413 is described as a 100% cotton rib knit pullover sleep top. It has a rounded, capped neckline, short sleeves with rib knit cuff, and a hemmed bottom with one-inch side slits. The pants were classified in subheading 6104.62.2011, HTSUSA, which provides for women's knit cotton trousers. The pants were found to be dutiable at the 2001 general rate of 15.4 percent ad valorem. The top, style 69413 was classified in subheading 6110.20.2075, HTSUSA, which provides for women's knit sweaters, pullovers and similar articles of cotton. The top was found to be dutiable at the 2001 general rate of 17.8 percent ad valorem.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear under Heading 6108, HTSUS, or as outerwear garments under headings 6110, 6114 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....

It is your belief that based on the following analysis the garments for which you are requesting reconsideration should have been classified as sleepwear:

● The construction of the garments indicates that they are sleepwear, based on the lack of certain features such as pockets, zippers, button, or other types of ornamentation that would render the garments uncomfortable for sleeping;

● The garments are sized for a roomy fit to make them comfortable for sleeping;

● Due to these features they would not be suitable for wear outside, but rather are suitable for sleepwear;

● The provided advertising material indicates that the garments are marketed and sold as sleepwear;

● In NY H86674 and HQ 964513, certain Land's End garments were classified 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 of which these garments are constructed is used for both types of garments. The appearance of these garments is, in fact, ambiguous. Although you claim 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. 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.

You have provided a copy of what appears to be a prototype or mock up of an "advertisement " from what was to be the "Spring/Summer '02" catalog featuring the submitted samples, with the exception of the two knit terry items. While the page is entitled "Pajamarama-new options in your mix-n-match favorites" the garments are not clearly described as sleepwear. For example the language describes the garments as being "great for sleeping or lounging" (style 76271), providing "5-to-9 comfort" (style 69410), and "[w]hat happened to long lazy Saturday mornings? Rekindle the tradition today with these lounger-friendly cotton rib separates".

The Lands' End web site provides additional information concerning the manner in which the garments are merchandised and sold. Although the section of the on-line catalog is entitled "women's sleepwear" the descriptions are not clearly sleepwear. The garments are described as "sleep/lounge sets"(styles 76299, 763000) as being "a lounger's dream" (style 76299), "lounger friendly" (styles 69410, 69413, 72317), and "a lounger's paradise" (style 69410).

A recent Lands' End catalog features these garments. They are described therein as multi-purpose garments. The catalog urges the consumer to "[g]o on, dash for the mail" (style 69413), describes style 69410 as "5-to 9-ers" and "an off-hours must", and styles 76299 and 76300 as "a lounger's dream".

Customs does not find the fact that the garments at issue are claimed to be sleepwear 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 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.

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. Accordingly, NY rulings H81928, H81929, and H819300 are affirmed.

HOLDING:

The garments submitted identified as styles 76299 and 69410 (70883) are women's cotton knit pants classifiable in subheading 6104.62.2011, HTSUSA, the provision 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: Trousers and breeches: Women's: Other." The applicable 2002 column one general rate of duty is 15.3 percent ad valorem and the textile quota category is 348.

The shorts, style 76271, 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 2002 column one general rate of duty is 15.3 percent ad valorem and the textile quota category is 348.

The upper body garment identified as styles 72317 and 69413 are women's rib knit pullovers classifiable in subheading 6110.20.2075, HTSUSA, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other: Other: Other: Women's or girls.” The applicable 2002 column one general rate of duty is 17.3 percent ad valorem and the textile quota category is 339.

The upper body garment identified as style 76300 is a women's cotton knit top classifiable in subheading 6114.20.0010, HTSUSA, which provides for “Other garments, knitted or crocheted: Of cotton: Tops: Women's or girls'.” The applicable 2002 column one general rate of duty is 10.9 percent ad valorem and the textile quota category is 339.

NY H81928, H81929, and H81930 are affirmed.

The designated textile and apparel category 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 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 updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quota (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.treas.gov.

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,


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