CLA-2 CO:R:C:T 953591 jb
Beth C. Brotman, Esquire
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036
RE: women's dorm shirts; not pullovers; nightdresses, subheading
6108.31.0010, HTSUSA.
Dear Ms. Brotman:
This ruling is in response to your request, dated
March 8, 1992, on behalf of your client, McCrory Stores,
regarding classification under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) for women's cotton dorm
shirts.
FACTS:
The merchandise, style numbers 1192/DOM0496 and
1957/DOM0501, are representative of a series of similar garments.
Style numbers 1192/DOM0496 and 1957/DOM0501 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.
Dorm shirts, essentially the same as the merchandise in
question, were previously submitted by you for a ruling, and in
HQ 951628, dated August 12, 1992, were classified in heading
6108, HTSUSA. Given the uniformity of the garments (i.e.,
construction and manner in which they are advertised, sold and
used) you ask that HQ 951628 be applied retroactively to all
identical garments, regardless of when they were entered.
ISSUE:
Whether the sample 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 it 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, that this garment was
chiefly used as a jacket and must be classified accordingly.
As was stated in HQ 951628, the documentary evidence which
was 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 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 garments, Style numbers 1192/DOM0496 and
1957/DOM0501, are 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.
The foregoing decision should be applied to all unliquidated
entries and open protests.
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