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HQ 967185




October 8, 2004

CLA-2: RR:CR:TE: 967185 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.62.2011, 6114.20.0010

Mr. Kevin Maher

C-Air, Customhouse Brokers and International Freight Forwarders 181 South Franklin Avenue
Valley Stream, NY 11581

RE: Reconsideration of NY K84874 and NY K84624; Classification of Women’s Garments; Sleepwear vs. Loungewear

Dear Mr. Maher:

This is in response to your letter of May 20, 2004, to the Bureau of Customs and Border Protection (CBP), on behalf of your client Delta Galil USA, Inc. (“Delta Galil”), requesting reconsideration of New York Ruling Letter (NY) K84874, dated April 23, 2004, and NY K84624, dated April 30, 2004. NY K84874 concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a woman’s knit top from Turkey or Macedonia, identified as “style number JF-001-A.” NY K84624 concerns the classification under the HTSUSA of a pair of woman’s knit pants from Turkey or Macedonia, identified as “style number JF-001-B.” In support of your request for reconsideration, you have submitted additional information about the merchandise. Delta Galil has also directly provided us with some additional information.

FACTS:

Style number JF-001-A is a woman’s top constructed from 100% cotton 1x1 rib knit fabric. The sleeveless garment extends to the waist and features shoulder straps measuring approximately " in width, a modified U-shaped neckline in front, a screen-printed design on the front panel,

There is a print of a young woman’s face and shoulders on the front panel of the top. Also, the product specification sheets show that, next to the woman’s face, an assortment of catch phrases will be printed. and a hemmed bottom. The upper portion of the back extends straight across from side seam to side seam. In NY K84874, style number JF-001-A was classified in subheading 6114.20.0010, HTSUSA, which provides for other garments, knitted or crocheted, of cotton, tops, women’s or girls’

Style number JF-001-B is a pair of women’s pants constructed from 100% cotton 1x1 rib knit fabric. The pull-on pants feature a 2-inch elasticized waistband with a drawstring, a screen-printed design with text on the front panel of the left leg, There is a print of a young woman’s face and shoulders on the front panel of the left leg. and hemmed leg openings. In NY K84624, style number JF-001-B was classified in subheading 6104.62.2011, HTSUSA, which provides for women’s or girls’ 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.

In your letter, you assert that style number JF-001-A and style number JF-001-B are sleepwear. In support of your position, we have received: (i) a statement from Kohl’s (the retailer of the garments) that both styles will be sold in their sleepwear department, (ii) a copy of an advertising agreement with Kohl’s that states that the styles will be sold in the sleepwear department, (iii) copies of Kohl’s hang tags that are coded to show that the styles will be sold in their sleepwear department, (iv) Delta Galil product specification sheets that refer to the styles as sleepwear, and (v) a copy of an advertisement of the garments from the Kohl’s circular. Also, in the additional information that we received from Delta Galil, Delta Galil states that it does not market multi-use garments and that, to Delta Galil’s knowledge, Kohl’s does not sell multi-use garments.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear under heading 6108, HTSUSA, or as outerwear garments under headings 6104 and 6114, HTSUSA, respectively.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

In determining the classification of garments submitted to be sleepwear, CBP 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 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.

Furthermore, we bring your attention to International Home Textile, Inc. v. United States, 21 CIT 280, 282 (1997), aff’d 153 F.3d 1378 (CAFC, 1998), 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, non private activities in and around the house e.g., watching movies at home with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like ....

You believe that the product characteristics and the extrinsic information that you and Delta Galil submitted establish that style number JF-001-A and style number JF-001-B are designed, manufactured and used as sleepwear. We disagree.

When ruling on similar merchandise in the past, CBP’s policy has been to carefully examine the physical characteristics of the garments 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 CBP considers these factors in totality and no single factor is determinative of classification as each factor viewed alone may be flawed. See HQ 964513, dated February 11, 2002.

An examination of the physical characteristics of style number JF-001-A and style number JF-001-B shows that there is nothing about the styling, fabric, cut or construction of the styles that 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. In fact, some of the garments’ features suggest that they will be worn as lounge wear and not as sleepwear. For example, the substantial screen printing on the front panels of both styles makes both garments less soft and comfortable for sleeping, as the screen printing is rough to the touch. Additionally, the presence of the screen-printing with a message suggests that the styles will be worn in the presence of someone who can read the text. We note that we do not find that the styles are too sheer or revealing for wear in public (i.e., in the company of persons other than family or intimate friends). Accordingly, we find that the physical characteristics of the garments do not establish that the styles are sleepwear. We will now consider the extrinsic evidence that you submitted in furtherance of your position that the garments are sleepwear.

In the additional information that we received from Delta Galil, Delta Galil states that it does not market multi-use garments and that, to Delta Galil’s knowledge, Kohl’s does not sell multi-use garments. We find both statements to be incorrect. A visit to the Delta Galil Industries Ltd. website shows that while Delta Galil primarily markets intimate apparel, it does indeed also market leisurewear. A visit to the Kohl’s website shows that Kohl’s sells loungewear as well as other multi-use garments. The product specification sheets submitted to us demonstrate that Delta Galil characterizes both styles as sleepwear. However, we have previously rejected claims that imported merchandise should be classified solely on how a company characterizes itself, its product line or where it locates its business. See HQ 961185, dated June 11, 1999. Furthermore, we recognize that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti v. United States, 16 CIT 407 (1992). Thus, the product specification sheets do not establish that the styles are sleepwear.

The statement from Kohl’s, the advertising agreement, and the hang tags that you submitted merely show that both styles will be sold in the sleepwear department. The fact that both styles will be sold in the sleepwear department does not persuade us that the garments 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 and rulings cited therein; HQ 952105 of July 21,1992; HQ 085672 of October 29, 1989; and HQ 955088 of December 14, 1993.

The copy of the advertisement of the garments from the Kohl’s circular that you submitted includes a photo of two young women standing up, smiling at each other, wearing the garments. The caption below the photo states, “30% off entire stock [of] sleepwear, loungewear & robes for her.” The advertisement is ambiguous and does not clearly show the garments as sleepwear.

Taking into consideration all of the information before us, especially the garments themselves, we find that you have not established that the garments are sleepwear. While some of the material that you submitted suggests that the garments are designed and manufactured as sleepwear, you have failed to present any compelling evidence showing that the garments are marketed, advertised and will be principally used as sleepwear. Therefore, the styles are properly classified as outerwear garments, not as sleepwear. Accordingly, NY K84874 and K84624 are affirmed.

HOLDING:

Style number JF-001-A is classified in subheading 6114.20.0010, HTSUSA, which provides for “Other garments, knitted or crocheted: Of cotton, Tops: Women’s or girls’.” The applicable 2004 column one general rate of duty is 10.8 percent ad valorem and the textile quota category is 339.

Style number JF-001-B is classified in subheading 6104.62.2011, HTSUSA, which provides for “Women’s or girls’ 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 2004 column one general rate of duty is 14.9 percent ad valorem and the textile quota category is 348.

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 your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, which is available on the CBP website at www.cbp.gov.

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 your local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director

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