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HQ 964513




February 11, 2002

CLA-2 RR:CR:TE 964513 RH

CATEGORY: CLASSIFICATION

TAROFF NOS.: 6208.21.0010; 6208.91.3010

Ms. Carolyn B. Malina
Import/Export Manager lands’ end, inc.
5 Lands’ End Lane
Dodgeville, WI 53595

RE: Request for Reconsideration of NY F88079, dated July 12, 2000; Women’s Sleepwear or Loungewear

Dear Ms. Malina:

This is in reply to your letters of September 15, 2000 and January 5, 2001, requesting reconsideration of New York Ruling Letter (NY) F88079, dated July 12, 2000. Specifically, you request reconsideration of three items (style 69415, style 69412 and style 69411) that Customs classified as outerwear garments. You maintain that the items are sleepwear.

We also received a “FAX” from the law firm of Miller & Chevalier containing advertising materials for the items in question.

We find that NY F88079 is correct based on the information provided at the time of its issuance. Accordingly, the request for reconsideration is denied. The new information concerning how the garments are designed, marketed and sold are addressed in this ruling letter.

As with any ambiguous garment, Customs recommends that importers submitting ruling requests involving sleepwear which is not readily recognizable as sleepwear or outerwear (loungewear) should submit a full and complete statement of the facts, including but not limited to design, marketing and sales information. Customs realizes that this may result in the same merchandise being classified differently when imported by different companies. Despite Customs belief that each article has only one appropriate classification under the

HTSUS, it appears that in the case of ambiguous garments, the courts direct consideration of the manner in which the garments are designed, marketed, sold and recognized in the trade. If an importer can establish that an ambiguous top and/or bottom is designed, marketed and sold as sleepwear, the garment will be classifiable as sleepwear.

Under section 484 of the Tariff Act of 1930, as amended, (19 U.S.C. §1484) the importer of record is responsible for using reasonable care to enter, classify and value importer merchandise, and provide any other information necessary to enable Customs to properly assess duties, collect accurate statistics and determine whether any other applicable legal requirement is met. When dealing with ambiguous garments, importers have the responsibility of advising Customs of the manner in which a garment is designed, marketed and sold, in order to ensure the proper classification of merchandise. Providing such information is the importers’ part of the reasonable care and shared responsibility equation.

Customs cautions all importers that if information is received that garments are entered by means of false statements or merchandised in a manner not consonant with the entered classification, action under 19 U.S.C. §1592 may be appropriate. Representations by importers of the manner in which garments are designed, marketed and sold are subject to periodic verification by Customs. If it is found that garments are not designed, marketed and sold in accordance with the representations or that the importer has engaged in artifice or disguise to avoid a duty rate or textile category code, a penalty may ensue.

FACT:

Style 69415 is a woman’s top that features a scooped front and back neckline, ¼ inch wide shoulder straps, side vents and decorative trim around the neckline and bottom.

Style 69412 is a pair of bottoms that feature short legs, an elasticized drawstring waist and decorative trim around the waist and leg openings.

Style 69411 is a pair of bottoms that feature a partially elasticized drawstring waist, long hemmed legs and decorative trim around the waist and leg openings.

ISSUE:

Are the three garments described above classifiable as pajamas or sleepwear under heading 6208, HTSUS, or under heading 6204, HTSUS, and heading 6211, HTSUS, as outerwear garments?

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 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), HTSUS, 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 presented with a garment which is ambiguous and not clearly recognizable as sleepwear 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 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).

The advertising information submitted for the three items in question clearly identifies the garments as sleepwear separates and sets out their “mix and match” marketing strategy. Additionally, our examination of the samples supports a finding consistent with the advertising. The garments are lightweight, “roomy” with oversized armholes and a large “seat” which makes them well suited for sleeping. Moreover, unlike loungewear, these items are not the type of garments that would generally be worn at informal social occasions or for non-private activities. Accordingly, we find that the garments are correctly classified under heading 6208, HTSUS.

HOLDING:

When imported together in shipments containing matching equal numbers of tops (style 96415) and bottoms (styles 96411 and/or 96412), these garments are classified as women's cotton pajamas with two or more colors in the warp and/or filling in subheading 6208.21.0010, HTSUS. Garments classifiable in this subheading are subject to a rate of duty of 9 percent ad valorem and fall within textile category 351.

When imported separately, or as unmatched extras in a shipment, styles 96411, 96412 and 96415 are classifiable, ejusdem generis, as similar articles in subheading 6208.91.3010, HTSUS, of the same class or kind as the exemplars of heading 6208, HTSUS. Garments classifiable in this subheading are subject to a rate of duty of 11.3 percent ad valorem and fall within textile category 352.

A copy of this ruling letter and NY F88079 should be attached to each entry of the subject merchandise.

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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