CLA-2 CO:R:C:T 951776 CMR
TARIFF NO: 6108.31.0010
Alan Klestadt, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Classification of certain women's knit top and bottoms sets;
pajamas (sleepwear) v. sportswear; 6108, HTSUSA, v. 6104,
HTSUSA (ensembles)
Dear Mr. Klestadt:
This ruling is in response to your submission of May 1,
1992, on behalf of Mast Industries (Far East) Limited, regarding
the classification of three styles of women's knit top and
bottoms sets. The garments will be imported from Hong Kong.
Samples were received by this office with your submission.
FACTS:
Style VCK-412 consists of a 100 percent cotton rib knit
pullover and matching rib knit shorts. The pullover features a
scoop neckline with fine rib knit capping, fitted 3/4 length
capped sleeves and a straight, capped bottom. The matching
shorts feature an elasticized, self-fabric waistband and hemmed
bottoms.
Style VCK-316 consists of a 100 percent cotton knit pullover
and matching shorts. The pullover has a scoop neckline with a
small ribbon bow at the bottom of the scoop neckline, short
sleeves and a straight hemmed bottom. The matching shorts
feature an elasticized self-fabric waistband, rounded bottoms and
a small ribbon bow at the center front.
Style C-4007A consists of a 100 percent cotton knit pullover
and matching shorts. The pullover is an oversized T-shirt style
garment with oversized short sleeves. The garment features the
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"Cacique" logo printed in a floral/paisley circle on the front.
The matching boxer-style shorts feature a 1-3/4 inch elasticized
self-fabric waistband and slightly flared leg openings with 2-
1/2 inch side slits.
The fabrics used to manufacture the above styles are all
soft to the touch and fairly lightweight. Styles VCK-316 and
VCK-412 are being produced on behalf of Victoria's Secret
Catalogue. Style C-4007A is being produced on behalf of Lingerie
Cacique.
In the submission, it is asserted that the garments at issue
are designed, marketed and sold as women's sleepwear. In support
of this claim, advertising galley proofs for Victoria's Secret
Catalogue's "Summer Pleasures '92" catalogue for styles VCK-316
and VCK-412 have been submitted. Style VCK-412 is shown worn by
a model and described in the copy as follows:
Essence of comfort: the relaxed boxer pyjama set, in soft
variegated ribbed cotton knit. Boxy top has three-quarter
sleeves, bottoms have an elasticized waist and a full, easy
shape. * * * S,M,L. Ribbed Pyjama Set, * * *.
Style VCK-316 is shown worn by a model and described in the copy
as follows:
Summer dream: the cotton knit boxer pyjama set with a tiny
rosebud print on white (99). Bow-trimmed short sleeve top;
short, elasticized bottom. * * *
Copies of purchase orders, production orders and garment
specification sheets, all of which identify styles VCK-412 and
VCK-316 as pajamas or sleepwear, have been submitted.
As to style C-4007A, a purchase order, production order and
specification sheet, all identifying style C-4007A as pajamas,
have been submitted. Additionally, it is asserted that Lingerie
Cacique, which will sell style C-4007A, only sells lingerie and
intimate apparel.
ISSUE:
Are the submitted garments classifiable as pajamas of
heading 6108, HTSUSA, or as outerwear ensembles of heading 6104,
HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
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headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
When determining the classification of a garment, the most
persuasive evidence is the garment itself. The court in Mast
Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F.
2d 1144 (1986), noted that "the merchandise itself may be strong
evidence of use." United States v. Bruce Duncan Co., 50 CCPA 43,
46, C.A.D. 817 (1963). Additionally in Mast, supra, at 552, the
court noted the definition of "nightwear" as "garments to be worn
to bed." The court held that the particular garment at issue
therein was classifiable as nightwear since it was designed,
manufactured, marketed and used as nightwear.
In the case of the garments at issue, each style is
constructed of soft, knit cotton fabric. The garments are
designed for comfort. Nothing about the design or construction
of the garments would preclude their use as sleepwear pajamas.
However, it could also be argued that nothing about the design or
construction limits their use to that of sleepwear pajamas. In
other words, these garments are susceptible to uses other than as
sleepwear, i.e., outerwear shorts and tops.
Since an examination of the garments does not lead to a
incontrovertible conclusion that they are sleepwear pajamas,
Customs will look to the additional information which has been
submitted. In that regard, in HRL 950503 of June 19, 1992,
Customs stated:
[It] should be noted that Customs recognizes that internal
documentation and descriptions on invoices may be self-
serving and should be considered in totality with other
evidentiary information. Indeed, the Court of International
Trade in ruling on the classification of certain garments
known as "leggings" noted: "The court is not highly
persuaded by plaintiffs invoices or advertising calling the
items 'tights.' To avoid pants quota limitations plaintiff
must refer to the items as 'tights.'" Regaliti Inc. v.
United States, Slip-Op. 92-80, at 5. Therefore, while
Customs will recognize and consider the descriptions on
internal documents and invoices presented, it will not view
them as determinative of a classification, but merely a
consideration.
Therefore, while Customs will consider advertising and
documentation such as invoices and purchase orders, such material
will be considered only if an examination of the physical
characteristics of the garment does not lead to a clear
conclusion.
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There is evidence submitted that styles VCK-412 and VCK-316
are to be advertised as pajamas and that style C-4007A will be
sold in a store which sells only lingerie and intimate apparel.
In Mast, 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." While it is
possible that the term "pajamas" could be used to identify
garments other than sleepwear pajamas, we believe that when used
in conjunction with phrases such as "essence of comfort" and
"summer dream" in describing garments, most consumers will view
the term as referring to sleepwear garments.
As to style C-4007A, Customs recognizes that simply because
the merchandise at issue is sold in a store specializing in
lingerie does not mean that, ipso facto, it is sleepwear.
Customs has long recognized that intimate apparel/sleepwear
departments often sell a variety of merchandise, some of which
may be intended for use as outerwear. See, HRL 075328 of July 8,
1985, HRL 080967 of March 4, 1988, HRL 951754 of June 25, 1992,
HRL 952105 of July 21, 1992, and HRL 085672 of October 29, 1989.
The environment of sale, however, is a consideration and may lend
support for the claimed classification.
Returning to the garments at issue, for it is the garments
themselves on which the classification is based, they are made of
soft, comfortable cotton. As stated earlier, nothing about their
design or construction precludes their use as sleepwear and, in
fact, based upon the physical characteristics of these particular
garments, i.e., the fabrics and the styling, the garments are
suitable for use as sleepwear (although they could be susceptible
to other uses). Additionally, the garments are advertised and
presented to the consumer as pajamas. In light of the
suitability of the garments for use as pajamas and the
information submitted by counsel for the importer regarding
marketing and advertising of the garments, it is difficult for
Customs to reject the importer's claim that the garments are
sleepwear and will be principally used as such.
HOLDING:
Styles VCK-412, VCK-316 and C-4007A are classifiable as
women's cotton knit pajamas in subheading 6108.31.0010, HTSUSA,
textile category 351, dutiable at 9 percent ad valorem.
As set forth in 19 CFR 177.9, a ruling letter issued by the
Customs Service regarding the classification of an article under
the HTSUSA is applicable only with respect to transactions
involving articles identical to the sample submitted with the
ruling request or to articles whose description is identical to
the description set forth in the ruling letter. In the case of
garments, such as those classified herein, the classification
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decision often turns on a visual examination of the garments.
Garments which may appear to be similar or identical based upon a
written description, when visually examined, may be quite
distinctive. Therefore, please note that this ruling is
applicable only for the goods classified herein and is not to be
considered precedential in nature.
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.
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,
John Durant, Director
Commercial Rulings Division