CLA-2 CO:R:C:T 953834 jb
William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Reconsideration of Ruling Letter 882076; pullover
v.loungewear; marketing and advertising important
factors but controlling factor is the garment itself
Dear Mr. Maloney:
This ruling is in response to your request, dated April 6,
1993, on behalf of your client, Venture Stores, Inc., for
reconsideration of New York Ruling (NYRL) 882076, dated
February 4, 1993, regarding the proper classification of a
women's fleece garment. A sample was submitted to this office
for examination.
FACTS:
The merchandise, style number 55420 and referred to as a
fleece "skimp", was the subject of NYRL 882076, and was
classified as a pullover under subheading 6110.30.3055, HTSUSA.
The garment at issue consists of a woman's "skimp"
constructed from knitted fleece fabric with a fiber content of 65
percent polyester and 35 percent cotton. The garment is loose-fitting, extends below mid-thigh and features a rib knit
neckline, long sleeves with rib knit cuffs, and a rib knit
bottom.
ISSUE:
Whether the submitted merchandise is classifiable as a
women's pullover in subheading 6110.30.3055, HTSUSA, or as
sleepwear in subheading 6108.32.0010, HTSUSA, or as a similar
article in subheading 6108.92.0030, 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 1, 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 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, at 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.
The documentary evidence which you made available to this
office is as follows:
1. A copy of an internal department listing which shows
several of the different Venture Store departments including
sleepwear and robes/loungewear. The subject skimps were ordered by the robes/loungewear department.
2. A copy of an import purchase order covering the fleece
skimps
3. A sample of the hangtag and label bearing the trademark
"Nite Mates"
4. A copy of a Venture Store adjacency plan which directs
the stores on how to display merchandise. The fleece skimps
are displayed for sale with sleepwear and
loungewear.
5. A copy of a print ad published in November 1992,
covering the fleece skimps under their old trademark "Morning
Crew". The ad copy provides "Sweet Dreams start with a
holiday gift of warm comfortable fleece." The print ad also
notes that the garment may be found in the ladies'
loungewear department. The skimp was also depicted
in the advertisement next to an article of loungewear.
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 their physical characteristics,
use, and advertising.
The term "skimp" has no traditional or well-defined meaning
in the fashion industry. The ultimate consumer is thus not
directed by the terminology as to how the garment is intended to
be worn, as would be the case if the word "pajama" or "robe" were
used in the description of the garment. As to its physical
characteristics, the garment speaks for itself and is indicative
of classification (See also, HQ 088904, dated February 19, 1992
and HQ 087843, dated December 19, 1990, where it was held that
the appearance of the garment itself was determinative of
classification). The oversized cut of this garment evidences
that it is designed and intended to be worn as loungewear. The
term "loungewear" itself leads to confusion since it is a term
neither provided for under the HTSUSA, nor is universally
defined. As defined in Webster's Ninth New Collegiate
Dictionary, 1983, at 707, loungewear suggests:
informal clothing designed to be worn at home
Features such as loose fitting, large neckline, absence of any
fasteners, and below the mid-thigh length, renders this garment
particularly appropriate for not only casual wear around the
home, but also for running errands outside the home or going out
informally.
This type of loungewear is to be distinguished from the type
of intimate loungewear which, although also worn in the home,
would be inappropriate to wear outside the home or in the home in
the presence of others. Intimate loungewear finds its place in
heading 6108, HTSUSA, which provides for, among other things,
women's or girls' negligees, dressing gowns, bathrobes and
similar articles. The subject skimp is not of the class or kind
of garment found under this provision. This garment, in our
view, could very easily be worn outside the home and used as an
outerwear garment.
For the same reasons the subject garment cannot be
considered as sleepwear in heading 6108, HTSUSA. As already
stated, it is the opinion of this office that the appearance of
the garment suggests apparel other than sleepwear. Paired with
leggings, this garment easily makes the transition as an
outerwear garment. It is interesting to note that the garment is
neither purchased, marketed or sold as a pajama or nightgown.
This particular garment is purchased by the loungewear department
though displayed both in the loungewear and sleepwear department.
Though a copy of the importer's adjacency plan directing
stores how and where to display the merchandise was submitted,
this evidence is not itself dispositive of classification.
Customs has been consistent in holding that location of sale of
the article is not indicative of classification. Internal
documents and descriptions on invoices may be self-serving and
should only be considered in totality with other evidentiary
information (See, e.g. HQ 953001, dated January 21, 1993, HQ
950503, dated June 19, 1992, HQ 088904, dated February 19, 1992,
HQ 087675, dated February 4, 1991, HQ 087483, dated December 12,
1990, HQ 087772, dated November 27, 1990, HQ 087478, dated
November 9, 1990, HQ 085672, dated October 29, 1989, and HQ
082624, dated March 22, 1989).
The advertisement submitted to this office also adds to the
ambiguity. In the larger picture a woman is shown wearing the
skimp paired with leggings, leaning on what appears to be the
back of a sofa. The smaller picture, featured on the same page,
shows another woman sitting on the floor dressed in the skimp,
sans the leggings, and a koala bear over her shoulder. Clearly
the consumer is getting a conflicting or dual message from the
advertisement; namely, that the garment can be worn either as
loungewear, of the outerwear type, when paired with leggings; or
as loungewear, to be worn at home, without the leggings.
In light of the fact that the documentation submitted is not
convincing evidence that the subject garment is to be worn as
either sleepwear or loungewear (of the intimate type), and due to
conflicting terminology and advertisements, the garment remains
classified in subheading 6110.30.3055, HTSUSA.
HOLDING:
The submitted merchandise was properly classified in
subheading 6110.30.3055, HTSUSA, which provides for women's or
girls' sweaters, pullovers, sweatshirts, waistcoats (vests) and
similar articles, knitted or crocheted, other. The applicable
rate of duty is 34.2 percent ad valorem, and the textile category
is 639.
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