CLA-2 CO:R:C:T 953001 SK
Saralee Antrim-Saizan
Carmichael International Services
256 West Ivy Avenue
Inglewood, CA 90302-3394
RE: Classification of a two-piece ladies' garment; sleepwear v.
outerwear; heading 6108, HTSUSA; classification based on
physical examination of the garment and extrinsic evidence of
marketing, advertising and industry treatment; HRL 951776
(10/1/92); Mast Industries v. U.S., 9 CIT 549 (1985), aff'd,
786 F. 2d 1144 (1986).
Dear Ms. Antrim-Saizan:
This is in reply to your letter of October 22, 1992, on
behalf of Venture Stores, requesting the tariff classification of
a ladies' two-piece garment. A sample was submitted to this
office for examination.
FACTS:
The submitted sample, referenced style 8520, is a ladies'
two-piece garment constructed of 55 percent cotton and 45 percent
polyester rib knit. The boxy top is generously cut with short,
hemmed sleeves, straight bottom hem, scoop neckline and a six
button placket opening at the front. The bottoms are shorts with
relaxed boxer styling, covered elastic waist and full, easy
shape. The sample is labeled a size medium.
It is submitted that these garments were purchased for
Venture Stores' sleepwear departments and intended to be sold as
such. A copy of the purchase order shows style 8520 was
purchased for department number 004; an accompanying department
listing shows department 004 is sleepwear. Department 027 is
designated as the robes/loungewear department.
Advertising was also submitted for this garment. Venture
Stores' advertisement for this garment consists of a photograph
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of two models. One women is wearing style 8520, and she is
standing next to a seated women wearing a floor-length nightgown.
The ad's copy reads, "LADIES' KNIT RIBBED SHORTY PAJAMAS OR
PINAFORE GOWNS Pjs in poly/cotton, reg. $14.99, 100% cotton
gowns, reg.$15.99."
ISSUE:
Is style 8520 classifiable as pajamas of heading 6108,
HTSUSA, or as outerwear of heading 6104, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule
of the United States (HTSUSA) is governed by the General Rules of
Interpretation (GRI's), taken in order. GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes.
In Mast Industries v. United States, 9 CIT 549, (1985),
aff'd 786 F.2d 1144 (1986), the court examined how a garment was
designed, manufactured, marketed and sold as indicative of
whether that garment was indeed used as sleepwear. In applying
these principles to the instant merchandise, we first must
examine the physical characteristics of the garment itself in
order to determine its use.
The garment at issue is constructed of a soft, rib knit,
cotton/polyester blend. The sample is labeled a size medium,
however the proportions of the garment are oversized and are
larger than a normal size medium. It is clear that the garment
is designed to be loose-fitting and comfortable and is perfectly
suitable for use as sleepwear.
We recognize that the physical characteristics of this
garment are such that it could also conceivably be used as
outerwear. The garment's fabric is opaque enough so that it could
be worn as outerwear and, although the garment appears much
larger than a normal size medium, we realize that oversize
garments are currently in fashion. Our examination of the
garment yields a finding that it is suitable for use as either
sleepwear or outerwear.
As our physical examination of style 8520 proved
inconclusive as to whether it is sleepwear or outerwear, our
analysis now focuses on the submitted extrinsic evidence which
purports to demonstrate how the importer treats this article
internally, how it is marketed to the consumer, its environment
of sale, and how the industry treats this type of garment.
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You have provided internal documentation in the form of a
purchase order which states that the importer ordered style 8520
as "2-piece sleepwear set" and it is intended for Venture Stores'
sleepwear departments (dep't 004). You also provided a store
department listing which itemizes all the department numbers in
the store. Department 004 is designated as the sleepwear
department. We recognize that internal documentation and
descriptions on invoices may be self-serving and should only be
considered in totality with other evidentiary information. See
Headquarters Ruling Letter (HRL) 950503, dated June 19, 1992.
Therefore, while we will consider the information contained in
your submission, such material is considered only because
examination of the physical characteristics of the garment did
not lead to a clear conclusion as to the garment's identity.
More persuasive is Venture Stores' advertisement depicting a
model wearing style 8520 with copy referring to the garment as
"shorty pajamas". Not only does the copy refer to the garment as
"pajamas", but the model is standing next to another seated model
who is undeniably wearing sleepwear. This ad clearly
demonstrates that Venture Stores markets these garments to the
public as sleepwear. In Mast, at page 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." It is this office's opinion that most consumers will
view the term "pajamas" as referring to a sleepwear garment
rather than loungewear, especially when such language is used in
conjunction with a photograph of a women wearing style 8520 next
to a women in a traditional floor-length nightgown.
With regard to the issue of environment of sale, we are
aware that Venture Stores is not a boutique or specialty store
such as Victoria's Secret. If a store is well established as an
intimate apparel store, this is strong indication that the
garments sold therein are intimate apparel. In this case,
Venture Stores is a more generalized department store. As
acknowledged above, we are in receipt of the department listing
and purchase order which states that style 8520 is intended for
the sleepwear department. We realize that not only are these
documents internally produced and therefore less reliable than
other methods of establishing a garment's identity, but we also
recognize that even if a garment is to be displayed in the
"sleepwear" department, this is not incontrovertible evidence of
that garment's status as sleepwear. Many sleepwear departments
also display loungewear meant for use as outerwear around the
house. In this case, the submitted department listing also
contains reference to a "robes/loungewear" department. This
further persuades us that Venture Stores separates its sleepwear
from its loungewear and that if style 8520 is displayed in the
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sleepwear department, it is held out to the consumer as
sleepwear.
Lastly, this office is in possession of several
catalogues, both intimate apparel catalogues and more general
types of catalogues, which advertize very similar types of
garments as pajamas. This indicates that the trade treats these
types of garments as pajamas and is further evidence of style
8520's status as sleepwear.
The evidence, taken in its totality, indicates that the
garment at issue is sleepwear. This conclusion is based on the
fact that while the physical characteristics of this garment may
be suitable for use as either sleepwear or outerwear, adequate
evidence was provided by the inquirer to establish that Venture
Stores purchased this garment as sleepwear, markets it to the
public as such, and the trade treats virtually identical garments
as sleepwear.
HOLDING:
The garment at issue, style 8520, is classifiable under
subheading 6108.31.0010, HTSUSA, as women's cotton knit pajamas,
dutiable at 9 percent ad valorem. The applicable textile quota
category is 351.
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 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 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