CLA-2 CO:R:C:T 951628 jb
Beth C. Brotman, Esquire
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036
RE: Modification of NYRL 863938; women's dorm shirts; not
pullovers; nightdresses, subheading 6108.31.0010, HTSUSA.
Dear Ms. Brotman:
This ruling is in response to your request, dated April 17,
1992, on behalf of your client, McCrory Stores, for
reconsideration of New York Ruling (NYRL) 863938, dated July 3,
1991, regarding the proper classification of women's dorm shirts.
Upon further review, that classification is deemed to be in error
and is modified.
FACTS:
The merchandise, style numbers 1703, 1704, 1705, 1706 and
1707, which was the subject of NYRL 863938, was classified under
subheading 6110.20.2075, HTSUSA, as "pullovers and similar
articles, knitted, of cotton, other, women's".
Two samples, style numbers 1704 and 1707, representative of
all the styles which were the subject of NYRL 863938, were
resubmitted for our inspection. Style numbers 1704 and 1707 are
identical except for the printed design featured on the front of
each garment (a heart design and a sheep design, respectively).
The submitted garments are 100 percent cotton knit,
oversized T-shirts, measuring approximately 38 inches in length
and 26 inches across the chest. The garments feature a round,
ribbed-knit neckline, dropped shoulders with loose fitting
sleeves extending to slightly below the elbow, and a straight
hemmed bottom edge. The garments are designed and sold as "One
Size Fits All", and are imported from El Salvador.
You add that though NYRL 863938 specifically addresses
itself only to style numbers 1703, 1704, 1705, 1706 and 1707,
given that all the "dorm shirt" styles imported by McCrory are
identical in construction, varying only in color and in the
design printed on the front of the garment, you would like a
ruling from our office that is inclusive of all styles of this
garment which are of the same size, make and content
specifications as the specific styles cited in the New York
ruling.
ISSUE:
Whether the submitted merchandise is classifiable as women's
pullovers and similar articles under chapter 6110, HTSUSA, or as
women's nightdresses, in chapter 6108, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA, is in
accordance with the General Rules of Interpretation (GRI). The
GRI require that classification be determined according to the
terms of the headings and any relative section or chapter notes,
taken in order. Where goods cannot be classified solely on the
basis of GRI, the remaining GRI will be applied taken in order.
In classifying sleepwear, Customs follows court decisions
and long standing classification practices in its interpretation
of which garments are classifiable as sleepwear (or nightwear).
In Mast Industries v. United States, 9 CIT 549, aff'd 786 F.2d
1144 (1986), the court stated that the definition of nightclothes
was "garments worn to bed."
In addition, Customs Textile and Apparel Category
Guidelines, 53 F.R. 52564, CIE 13/88 (1988), state that
"nightwear" means sleepwear, so that garments worn to bed in the
day time are included under that designation.
In St. Eve International, Inc. v. United States, 11 CIT 224
(1987), certain 100 percent cotton knit, nonconfining garments
in a variety of colors, with prints covering the front of the
garments were held to be classifiable as "nightwear" rather than
as dresses, blouses, or shirts. Relying on United States v.
Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F2.d 373 (CAFC)
Cert. den., Carborundum Co. v. United States, 429 U.S. 979
(1976), in which the appeals court established criteria to be
applied in determining the chief use of an imported article in
the absence of special language or context, the court considered
the following factors to be determinative:
1. general physical characteristics of the merchandise;
2. expectations of the ultimate purchasers;
3. channels, class or kind of trade in which the merchandise
moves;
4. environment of the sale and the manner in which the
merchandise is advertised and displayed;
5. use, if any, in the same manner as merchandise which
defines the class;
6. the economic practicality of so using the import;
7. recognition in the trade of this use;
Applying these criteria, the court found that the
merchandise was designed as sleepwear, in that it was comprised
of lightweight 100 percent cotton knit, with a loose silhouette,
flat seams, a large neck, few buttons and no zippers, gores or
insets. Furthermore, it was established that the merchandise
was manufactured and advertised in sales catalogues and in the
fashion media as sleepwear and that is was sold mainly in the
sleepwear departments of major retail stores throughout the
country. It was also demonstrated that the garments were longer
than most blouses and shirts; they would be too bulky to be
tucked into a skirt or pants; many of the prints, because they
were positioned from neck to hem, would be interrupted and lose
their design value if belted or tucked into skirt or pants; and
that the fabric was too sheer to be worn out of doors without
undergarments.
In T.D. 87-118, HRL 084877, dated September 5, 1989, it was
also decided that a woman's finely knit oversized pullover
designated as "One Size Fits All", and featuring a round rib knit
neck, 3/4 length hemmed sleeves, one breast pocket and a hemmed
bottom with side slits extending to the mid-thigh, was
classifiable as a "nightshirt". Stressing the same criteria used
in St.Eve, it was concluded that although resembling a woman's
oversized shirt, the garment was bought, sold and marketed as a
sleepshirt.
Using similar reasoning, in regard to the classification of
a woman's jacket as either an indoor coordinate jacket or an
outdoor "coat", the court in Pollak Import Export Corp. v. United
States, Slip Op. 92-12, 26 Cust. Bull. and Dec., No. 11, 7
(decided February 14, 1992), held that based on the general
physical characteristics of the jacket, the expectations of the
ultimate purchasers, the channels of trade in which the jacket
was displayed, and the use of the jacket, it concluded that this
garment was chiefly used as a jacket and must be classified
accordingly.
At the time of the original ruling request, the information
subsequently provided to this office was unavailable. At that
time the only supportive documents which were submitted were
advertising materials from other companies illustrating similar
garments being sold in the United States as sleepwear. Since
that time, that paucity of information has been remedied and
supplemented with evidence of the manner in which these goods are
displayed, sold and advertised. This is in keeping with the
reasoning of the court that over the years has consistently
stressed the aforementioned criteria in determining the chief use
of an imported article when special language or context was found
to be lacking in the Tariff.
The documentary evidence which was now made available to
this office is as follows:
1. An affidavit from the buyer of ladies' lingerie for
McCrory Stores stating that these garments are purchased
by her and displayed in McCrory's stores as nightwear,
rather than as outerwear. Moreover, to the best of her
knowledge and belief, the said garments are purchased and
worn by consumers as sleepwear. Five photographs
which were appended to the affidavit illustrate the
manner in which these garments are displayed and sold in
McCrory's York, Pennsylvania store. Specifically, the
photographs indicate that the said garments are sold in
the "Intimate Apparel" section of the store along with
sleepwear and underwear garments, rather than in the
outerwear section of the store where shirts, pullovers
and blouses are sold.
2. A "Sales Promotion Sheet" issued by McCrory's Sleepwear
Department in October 1991, to its various stores,
instructing them as follows: "Dorm shirts should be
featured on special individual racks in the Sleepwear
Department."
3. A copy of the hangtag which will be placed on these
items, displaying a representation of the moon and
referring to the garment as a "ladies' sleep and dorm
shirt", clearly associating the garment with nighttime
and sleep.
4. A copy of a page from McCrory Stores' Spring advertising
circular depicting two "Dorm shirt" styles, likewise
referring to them as "ladies' sleep shirts".
Based on the factors which were found to be determinative in
both St. Eve and Pollak Import Export Corp., garments should be
classified in accordance with the way in which they are
advertised, sold and used. The supporting documents now provided
to this office, clearly indicate that the manner in which they
are constructed, purchased, displayed, sold and used, identifies
them as "nightwear".
As to their structure, the oversized cut of these garments
evidences that they are designed and intended to be worn as
nightwear. Features such as their loose fitting, large necklines
and absence of any fasteners render them particularly well-suited
for wear when sleeping. Moreover, the length and looseness of
the bodies of these garments and the printed design extending
over much of the front portion of the garment make them
unsuitable for belting or tucking into pants or skirts, and thus,
ill-suited for outerwear.
Furthermore, as indicated by the supporting documents, the
garments are part of the class or kind of garments marketed as
nightwear rather than as outerwear in that they are displayed and
sold in the Intimate Apparel Department, along with flannel
nightgowns, pajamas, baby dolls, etc. As is also evident from
the hangtag and circular, these garments are advertised and sold
as "sleepwear". It is also McCrory's understanding that the
expectations of the consumers purchasing these garments are to
utilize them for sleepwear.
In light of the fact that the advertisements are
overwhelmingly consistent, in keeping with the criteria noted
above, in addition to documents confirming the inquirer's claim
and information concerning the channels of trade, the submitted
articles clearly belong to the class of merchandise known as
sleepwear, classifiable under heading 6108, HTSUSA, which
provides for women's nightdresses.
HOLDING:
The submitted merchandise is classifiable under subheading
6108.31.0010, HTSUSA, which provides for women's or girls' slips,
petticoats, briefs, panties, nightdresses, pajamas, negligees,
bathrobes, dressing gowns and similar articles, knitted or
crocheted: nightdresses and pajamas: of cotton, women's. The
applicable rate of duty is 9 percent ad valorem, and the textile
category is 351.
You had advanced the additional request that all such dorm
shirts be classified under heading 6108, HTSUSA, since the only
change from one style to another is the printed design. We
cannot consent to the generalization you propose. Due to the
similarity of many garments, rulings will be issued only for
those styles submitted. No general classification for this type
of merchandise will be given.
In order to ensure uniformity in Customs classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), NYRL
863938 is modified to reflect the above classification effective
with the date of this 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 negotiations 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
issuance of the U.S. Customs Service, which is updated weekly and
is available 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, 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