CLA-2 CO:R:C:T 955341 NLP
Regional Commissioner of Customs
Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945
RE: Classification of pajamas vs. outerwear; heading 6208;
Textile Guidelines; HRLs 951754, 951032, 952105, 085672,
951184 and 954074
Dear Sir:
This is a decision on application for further review of
protest no. 1001-3-104726, filed on July 21, 1993, by Siegel,
Mandell & Davidson, on behalf of their client, Bentley Lingerie,
Inc., (Bentley), against your decision concerning the
classification of women's garments under the Harmonized Tariff
Schedule of the United States (HTSUS). Samples of the garments
were submitted for our review.
FACTS:
The merchandise subject to this protest consists of two styles
of women's garments: style nos. F294S and F296. Both styles
consist of a women's upper body garment and a pair of shorts, both
of which are constructed of 100% cotton flannel fabric. The upper
component of style F294S is sleeveless and features a six button
frontal opening, a pointed, button down shirt collar, two chest
pockets, pleats below the rear yoke and a shallow rounded bottom.
The inner portion of the garment contains solid colored fabric,
assumed to be made of man-made fibers, which reinforces the collar,
the back yoke and the button placket. The lower component has an
elasticized waist with a drawstring, side seam pockets and short
legs. The upper component of style F296 is also sleeveless and has
a five button full front opening, two chest pockets, a hooded
drawstring and side slits. The lower component has an elasticized
waist with a drawstring, side seam pockets and short legs.
Upon liquidation, the top portions of style nos. F294S and
F296 were classified in 6211.32.0080, HTSUS, which provides for
"[t]rack suits, ski-suits and swimwear; other garments: [o]ther
garments, men's or boys': [o]f cotton: [o]ther." The bottom
garments of both styles were classified in subheading 6204.62.4055,
HTSUS, which provides for "[w]omen's or girls' suits,
ensembles,...shorts (other than swimwear): [t]rousers, bib and
brace overalls, breeches and shorts: [o]f cotton: [o]ther: [o]ther:
[o]ther: [s]horts: [w]omen's."
Counsel for the importer contends that the garments are
pajamas and are properly classifiable in subheading 6208.21.0020,
HTSUS, which provides for "[w]omen's or girls' singlets...,
pajamas, negligees, bathrobes, dressing gowns and similar articles:
[n]ightdresses and pajamas: [o]f cotton: [o]ther: [w]omens's" for
the following reasons:
1. The United States Court of International Trade in
examining the issue of sleepwear in Mast Industries
v.Unite States, (Mast), 9 C.I.T. 549 (1985), aff'd, 786
F.2d 1144 (1986), determined that garments which are
designed, manufactured, marketed and sold as nightwear
are properly classifiable as sleepwear for tariff
purposes.
2. Bentley Lingerie sells intimate apparel and since 1987
it has limited its concentration to sleepwear.
3. The garments are sold under Bentley's "ESLEEP"
trademark. The garments are marketed with a hang tag
which states that "This is an original "ESLEEP" flannel.
A second tag states "ESLEEP products help you have the
lowest impact possible on the planet by using 100% cotton
in our sleepwear brand cotton sleepwear."
Although there is no advertising of the specific
styles, there is advertising of the trademark itself and of
other flannel pajama stylings. The target group for the
advertising is the young misses and juniors markets.
Counsel has enclosed with their submission magazine ads
depicting "ESLEEP" long sleeve cotton flannel pajamas and
a sleep short set of cotton flannel and a video depicting
a cable tv spot that displays young woman wearing a
variety of "ESLEEP" products.
4. Styles F294S and F296 are designed as sleepwear and in
designing these goods, Bentley wanted to expand its
offerings to supplement its more traditional flannel
pajamas. Style F294S was developed as an experimental
styling based on market research indicating that female
teenagers were wearing sleeveless flannel pajamas. In
addition, Bentley was aware at the time the garments
were designed that hooded sleepwear was being sold in
lighter weight fabrics, such as jersey knit. Bentley
anticipated that this trend might spread to winter weight
nightwear and designed this style as a test. The design
was exported to the Canadian sleepwear market. Concerning
the designs of the garments, style F294S is sleepwear
because it is merely a flannel version of common shorty
pajama stylings. The shirt collar feature is common to
sleeveless shorty sleepwear styles. Style F296, which,
while it is a less traditional design, is also sleepwear.
Furthermore, these garments are similar in appearance to
other pajama styles sold in the sleepwear departments of
department stores. Two sample garments were purchased
at two department stores and were submitted for our
review.
5. The garments have been sold to sleepwear buyers for
sale in the sleepwear sections of a department store, a
discount store and specialty stores. Counsel has
submitted a letter from the sleepwear buyer at Mandees
and a letter from the assistant buyer of women's
sleepwear and robes of Mervyn's, which states that these
garments were bought on behalf of the store's sleepwear
department and they will be sold as sleepwear on the
lingerie sales floor.
ISSUE:
Whether the subject garments are classifiable as sleepwear in
heading 6208, HTSUS, or as sportswear separates in heading 6211,
HTSUS, and heading 6204, HTSUS?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation, (GRIs), 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 the event that the goods cannot be classified solely on
the basis of GRI 1, and if the headings and legal notes otherwise
require, the remaining GRI's may be applied, taken in order.
The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories (Guidelines), CIE 13/88,
dated November 23, 1988, state on page 24, that:
Pajamas are worn by both sexes and all ages. They consist
of an upper part, pullover or coat style, with long, short
or no sleeves and a lower part, short, intermediate, or long
trouser-like garments or of any style panties. The lower
part sometimes encloses the feet. Pajamas are sleepwear.
In Mast, at page 552, the court concluded that the definition of
nightclothes is "garments worn to bed." Your argument that the
Court in Mast emphasized that garments which are designed,
manufactured, marketed and sold as nightwear are properly
classifiable as sleepwear is well taken, yet it should similarly
be noted that the Court also stated 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).
When ruling on similar merchandise in the past, Customs'
policy has been to carefully examine the physical characteristics
of the garments in question. When this has not proven
substantially helpful, other extrinsic evidence such as advertising
and marketing information has been reviewed. As was stated in
Headquarters Ruling Letter (HRL) 951754, dated June 25, 1992:
The subject merchandise is of a type of garment that is
capable of being used for more than one purpose. Use of
this article both as shorts and as sleepwear is feasible and it
is this duality which complicates classification. When
confronted with garments which are claimed to be of a particular
class, yet strongly resemble articles of another class, Customs
will first examine the article itself and its particular design
features and thereafter any other extrinsic evidence pertaining
to the marketing, advertising and sale of the article....
The mere fact that the subject merchandise will be displayed
in the intimate apparel department of a large store that
also carries outerwear does not conclusively prove that the
garment is either sleepwear or underwear. It is well established
that intimate apparel departments include merchandise other than
intimate apparel. In fact, virtually any issue of BODY
FOUNDATIONS AND INTIMATE APPAREL, the trade publication for the
intimate apparel business, will demonstrate that intimate
apparel departments market a wide variety of "leisurewear" (i.e.,
loose, comfortable clothing worn in or outside the home in a
casual environment).
Other Headquarters Rulings have consistently determined that
where a garment does not display features recognizable as
"sleepwear" those garments will not be given a sleepwear
classification. In HRL 951032, dated May 7, 1992, a National
Import Specialist examining the garment stated:
...there is nothing about the styling, fabric, cut, or
construction of these garments which indicate that they were
designed primarily for wear to bed. Rather, the garments
are designed and constructed in the manner and style of knit
sportswear. We believe that these garments are part of the
relatively new men's loungewear trade where the garments are
designed for comfortable wear in and around the home.
Garments of this type are multi-purpose garments rather than
garments designed primarily to be worn for sleeping.
Careful consideration is given to the way in which the
merchandise is sold as an indication of classification. Yet, it
is to be understood that such information is weighed in conjunction
with other factors, such as, the physical characteristics of the
garment. HRL 952105, dated July 21, 1992, stated, in pertinent
part:
The manner in which merchandise is sold is a factor to be
considered but is not determinative of its classification...
Although style 12061D may well be displayed and sold in an
intimate apparel department, we are advised by the National
Import Specialist familiar with the trade that, in addition
to underwear and sleepwear, intimate apparel departments
include a variety of other merchandise, such as dresses,
rompers, jumpsuits, oversize shirts and boxer-style shorts.
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. For example in HRL 085672, dated
October 29, 1989, we stated the following:
Another difficulty arises where the environment of sale, in
addition to the garment styles, is ambiguous. Examination
of the trade press indicates that sleepwear/intimate apparel
departments of stores have sought to increase sales by
offering a variety of clothes in addition to sleepwear and
underwear. Visits to stores themselves reveal that this is
indeed the case. Thus, an importer's claim that the
merchandise is sold in a sleepwear department is not
conclusive of its classification. In many cases, garments
sold in these departments are indistinguishable from those
sold elsewhere.
With regard to documentation in support of claimed
classification, letters of credit, purchase orders,
contracts, confirmations, and other documentation incidental to
the purchase of the merchandise cannot be regarded as conclusive.
These documents can be self-serving and do not necessarily
reflect how merchandise is advertised in the U.S. market.
Therefore, internal documents and descriptions should only be
considered in totality with other evidentiary information. See,
e.g, HRL 953001, dated January 21, 1993; HRL 950503, dated June
19, 1992; HRL 088904, dated February 19, 1992; HRL 087675, dated
February 4, 1991; HRL 087483, dated December 12, 1990; HRL 087772,
dated November 27, 1990; HRL 087478, dated November 9, 1990; HRL
085672, dated October 29, 1989, and HRL 082624, dated March 22,
1989.
Thus, in determining whether garments qualify as pajamas,
Customs has relied on two factors:
a. the physical attributes of the garment; and
b. the advertising/marketing information
We note though, that, it is not enough to claim advertising or
marketing as an indication of classification. Where the physical
attributes of the garment do not lend support to the claim that
the garment is sleepwear, neither advertising nor marketing alone
will be considered conclusive enough to substantiate classification
for tariff purposes.
Our examination of the subject garments lead us to the
conclusion that they are designed primarily for use as loungewear
to be worn in and around the home. Specifically, the hood and
drawstring on style F296, the button down collars and reinforced
fabric around the collar, rear yoke and front placket on style
F294S are styling features generally found on outerwear garments.
These features contradict the claim that these garments are
sleepwear. It is your position that the shirt collar feature is
common to the sleeveless shorty sleepwear style on which the
flannel pajamas are modeled. While the presence of a shirt collar
alone will not eliminate a garment from classification as pajamas,
it is the combination of the features that lead us to the
conclusion that the garments are designed primarily for use as
loungewear. See, HRL 085673, dated October 29, 1989, where we
dealt with the classification of a women's two piece garment. The
upper of this garment had a full front opening with a placket
secured by seven buttons, a pointed collar, with a collar band,
short sleeves with turned up cuffs, a single breast pocket, a
double ply rear shoulder yoke and a rounded shirttail hemline.
The short pants had an elasticized waistband. This garment was
classified in heading 6206, HTSUS and 6204, HTSUS, and not in
heading 6208, as pajamas. We noted that the garments were not
comfortably sized and were not really loose fitting, nor was the
fabric such that wear as intimate apparel would be the only
appropriate use.
Moreover, counsel has enclosed samples of garments purchased
in the sleepwear department of two department stores in support of
their position that the subject garments constitute
recognizable sleepwear garments. The first style is a two piece
flannel garment with a sleeveless top and short bottoms. The
second garment is a two piece non-flannel garment that resembles
style F294S. This garment has a hang tag that states "Earth
Angels" and depicts a nightshirt floating over a meadow full of
sheep on one side and a poem on the other side.
Customs will take into account evidence of how certain
articles are being treated in the industry, however the articles
must be the same as those under consideration. See, HRL 951754,
dated June 25, 1992. While the garments counsel purchased are
similar to the garments at issue here, there are some differences.
For example, the upper portion of the first garment described above
lacks some of the features of style F294S, such as the pointed
collar, the reinforced yoke, etc. The second two piece garment is
not made from flannel material and neither of the garments have
hoods. In addition, other than the fact that these were purchased
in the sleepwear department of two department stores, which as
stated above is not dispositive of classification, there is no
further evidence that these garments are in fact marketed, designed
and sold as sleepwear.
Moreover, counsel cites two cases to demonstrate that direct
advertising on a garment is determinative of its classification.
In HRL 951184, dated June 19, 1992, which dealt with the
classification of women's teddies, the issue was whether the
teddies were classified as nightwear or as articles similar to
underwear in heading 6208, HTSUS. We determined upon physical
examination of the samples that the teddies possessed physical
characteristics which rendered them equally suitable for use as
sleepwear and as daywear. Therefore, we examined counsel's
submitted evidence. Among the evidence was documentation with
regard to the marketing, sale and use of these garments. For
example, on each price tag there was language which identified the
garment as a "DAYWEAR TEDDY". We stated that this was persuasive
evidence of how the garment was to be used. Moreover, in HRL
954074 dated June 11, 1993, we dealt with the classification of
men's boxer shorts. One of the samples featured a label that
stated "Your Guarantee of Sleeping Comfort". As the shorts
possessed features rendering then suitable for use as either
underwear or sleepwear, the marketing of the merchandise bore
directly on the issue of principal use.
In both cases described above, the garments were multiple use
garments suitable for use as either underwear or sleepwear and the
extrinsic evidence was used to help determine classification. In
the instant case, we have determined that the physical
characteristics of the garments support a classification of the
garments as other than sleepwear. Therefore, where the physical
attributes of the garment do not lend support to the claim that the
garment is sleepwear, neither advertising nor
marketing alone will be considered conclusive enough to
substantiate classification for tariff purposes. Thus, the
garments at issue are not classifiable as pajamas in heading 6208,
HTSUS. The top portions of the garments are classifiable in
subheading 6211.32.0080, HTSUS, and bottom portions are
classifiable in subheading 6204.62.4055, HTSUS.
HOLDING:
The protest is denied. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed by your
office to the protestant no later than 60 days from the date of
this letter. Any reliquidation of the entry in accordance with
the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings
Module in the ACS and the public via the Diskette Subscription
Service, Lexis, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division