CLA-2 CO:R:C:T 957004 CMR
Diane Weinberg, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, New York 10022-1106
RE: Classification of certain women's knitted sleepwear garments;
North American Free Trade Agreement; preference eligibility;
Article 509
Dear Ms. Weinberg:
This ruling is in response to your request of August 13,
1994, on behalf of your client, Bali Company (operating as Sara
Lee Intimates), regarding the classification of certain women's
knit sleepwear garments and their eligibility for duty preference
treatment under the North American Free Trade Agreement (NAFTA).
Samples were received with your request.
FACTS:
Five sample garments were submitted, all of which are
claimed to be sleepwear classifiable in heading 6108, HTSUSA,
which provides for, among other things, women's cotton knit
nightdresses and pajamas and similar articles. The garments are
identified by exhibit numbers, 1 through 5, and all are made of
100 percent cotton lightweight (4 ounce combed cotton) jersey
knit fabric. The garments will be manufactured in Mexico from
Mexican fabric and Mexican yarn. They will be sold in sizes
petite, small, medium and large.
The first two garments, exhibits 1 and 2, are identified as
nightdresses. Exhibit 1 (style G621) is a calf-length pullover
nightgown with full length sleeves, a crew neck, and a rounded
shirt-tail style bottom. The garment features contrasting
capping at the neck, sleeve ends and bottom. It is designed to
be loose and unfitted. Exhibit 2 (style G631) is a pullover
knee-length sleepshirt with length sleeves, a V-neck, and a
rounded shirt-tail style bottom. The garment features
contrasting capping at the neck, sleeve ends and bottom. It is
designed to be loose and unfitted. -2-
Exhibit 3 is a sleep top (pajama top). The garment reaches
to slightly below the hip area in length. It features length
sleeves, a wide crew neck, a chest patch pocket, and a rounded
shirt-tail style bottom. The garment features contrasting
capping at the neck, sleeve ends, bottom, and top of the patch
pocket. It is designed to be loose and unfitted.
Exhibits 4 and 5 are sleep bottoms (pajama bottoms). Exhibit 4
is a pair of long pajama bottoms. The bottoms have an
elasticized waist and contrasting capping at the leg bottoms.
The garment is designed to be loose and has no pockets. Exhibit
5 is a pair of short pajama bottoms that feature an elasticized
waist and no pockets. Exhibits 4 and 5 are made of matching
fabric and may be coordinated with exhibit 3, the sleep top.
In support of your claim that the subject garments are
sleepwear, you submit that the garments will be advertised as
"Hanes Her Way Dusk to Dawn" at home wear. You submit the
garments are designed to be worn for sleeping, but may be worn as
loungewear prior to going to bed and then as sleepwear in bed.
In addition, you indicate the garments are manufactured by Bali
Company, a company which does not manufacture or sell outerwear
garments, and that the garments will be sold in Walmart's
Intimate Apparel Department (which does not sell outerwear
garments).
ISSUE:
How are the garments at issue classified and do they qualify
for preferential trade treatment under the North American Free
Trade Agreement (NAFTA)?
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
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]."
In determining the classification of garments submitted to
be sleepwear, Customs considers the factors discussed in two
decisions of the Court of International Trade which are often
cited when discussing sleepwear and which, indeed, you cite in
your submission. In Mast Industries, Inc. v. United States, 9
CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986)
the Court of International Trade dealt with the classification of
a garment claimed to be sleepwear. The court cited several
lexicographic sources, among them Webster's Third New
International Dictionary's which defined "nightclothes" as -3-
"garments to be worn to bed." In Mast, the court determined that
the garment at issue therein was designed, manufactured, and used
as nightwear and therefore was classifiable as nightwear.
Similarly, in St. Eve International, Inc. v. United States, 11
CIT 224 (1987), the court ruled the garments at issue therein
were manufactured, marketed and advertised as nightwear and were
chiefly used as nightwear.
In contrast, the Court of International Trade disregarded
claims regarding marketing and advertising in Regaliti, Inc. v.
United States, Slip Op. 92-80, which dealt with the
classification of garments known as leggings which were
classified as pants by Customs and claimed by the importer to be
classifiable as tights. In upholding Customs classification of
the goods as pants, the court stated:
Plaintiff's fashion merchandising experts testified
that these items were "tights," and plaintiff advertises
them as "tights." * * * .
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."
In past rulings, Customs has stated that the crucial factor
in the classification of a garment is the garment itself. As the
court pointed out in Mast, "the merchandise itself may be strong
evidence of use." Mast at 552, citing United States v. Bruce
Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when
presented with a garment which is somewhat ambiguous and not
clearly recognizable as sleepwear or underwear or outerwear,
Customs will consider other factors such as environment of sale,
advertising and marketing, recognition in the trade of virtually
identical merchandise, and documentation incidental to the
purchase and sale of the merchandise, such as purchase orders,
invoices, and other internal documentation. It should be noted
that Customs considers these factors in totality and no single
factor is determinative of classification as each of these
factors viewed alone may be flawed. For instance, Customs
recognizes that internal documentation and descriptions on
invoices may be self-serving as was noted by the court in
Regaliti. Slip-Op. 92-80. We have long acknowledged that
intimate apparel/sleepwear departments often sell a variety of
merchandise besides intimate apparel, including garments intended
to be worn as outerwear. See, HRL 955341 of May 12, 1994 and
rulings cited therein; HRL 952105 of July 1992; HRL 085672 of
October 29, 1989; and HRL 955088 of December 14, 1993. With
these points in mind, Customs has reviewed your claim that these
garments are classifiable as sleepwear and we agree.
-4-
Customs believes that exhibits 1 and 2 (styles G621 and
G631) are a nightgown and nightshirt, respectively. Based upon
an examination of the garments, the fabric with which they are
made and the styling of the garments, Customs believes they
clearly fall within the common meaning of the terms nightgown and
nightshirt. See, Headquarters Ruling Letter (HRL 956202 of
September 29, 1994.
As to exhibits 3, 4 and 5, the classification decision is
based largely on the garments themselves, however, the additional
information presented to support classification as sleepwear was
also taken into consideration. Based upon all the information
presented, Customs agrees that exhibits 3, 4 and 5 are sleepwear
garments and if presented together as a matching top and bottom
set, e.g, 3 and 4, or 3 and 5, Customs would view the garments as
knit pajamas. Classification of exhibits 3, 4 and 5 will be
dependent on their condition as imported, and in that regard,
Customs stated in HRL 956202:
Based upon their condition at the time of importation,
shipments of equal numbers of matching sleepwear (pajama)
tops and sleepwear (pajama) bottoms will be viewed by
Customs as shipments of composite goods that form a whole
which is not normally sold as separate parts and is
commercially known as pajamas. Thus, garments in such
shipments will be classified as pajamas of heading 6208,
HTSUSA. [In this case, heading 6108, HTSUSA.] Please note,
that by the term "matching", Customs is making reference not
only to design, style and coloring, but also to size. In
regard to sizing, provided the bulk of the shipment consists
of garments (tops and bottoms) which are matched as to size,
a slight variation in sizing between a limited number of
tops and bottoms will not preclude classification as
pajamas.
If imported separately (shipments of only tops or only
bottoms) or if imported as extra components without a matching
top or bottom in a shipment, sleepwear separates cannot be
classified as pajamas because they fail to meet the common and
commercially understood definition of pajamas in their condition
as imported. See, HRL 956202, HRL 956239, 088635 of May 24,
1991, and HRL 089367 of July 31, 1991. As sleepwear separates,
Customs views the garments as similar articles of heading 6108,
HTSUSA. See, HRL 956202 of September 29, 1994; HRL 956239 of
October 4, 1994; and, HRL 956755 of November 10, 1994.
As to your request regarding trade preference treatment
under the NAFTA, Chapter 4 of the NAFTA sets forth rules for
determining whether an imported good qualifies as an originating
good of a NAFTA country. A good that qualifies as an originating
good is eligible for preferential tariff treatment as provided -5-
for under Article 302(2) and Annex 302.2 of the NAFTA. The basic
rules of origin in Chapter 4 of the NAFTA, as well as the
specific rules of origin found in Annex 401 of the NAFTA, are set
forth in General Note 12, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). (See 58 Fed. Reg. 69, 460,
December 30, 1993).
Subdivision (b) of General Note 12, HTSUSA, provides, in
pertinent part:
For the purposes of this note, goods imported into the
customs territory of the United States are eligible for the
tariff treatment and quantitative limitations set forth in
the tariff schedule as "goods originating in the territory
of a NAFTA party" only if--
(i) they are goods wholly obtained or produced entirely
in the territory of Canada, Mexico and/or the United
States; or
(ii) they have been transformed in the territory of
Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this
note, each of the non-originating materials used
in the production of such goods undergoes a change
in tariff classification described in subdivisions
(r), (s) and (t) of this note or the rules set
forth therein, or,
(B) the goods otherwise satisfy the applicable
requirements of subdivisions (r), (s) and (t)
where no change in tariff classification is
required, and the goods satisfy all other
requirements of this note; or
(iii) they are goods produced entirely in the territory
of Canada, Mexico and/or the United States exclusively
from originating materials.
Your letter indicates that the garments are manufactured in
Mexico from Mexican fabric which is made from Mexican yarn. Note
12(t) sets out the specific tariff shift rules for qualifying as
an originating good.
As stated above, the goods at issue are classifiable as
women's knit sleepwear in heading 6108, HTSUSA. Specifically,
exhibits 1 and 2 are classifiable in subheading 6108.31.0010,
HTSUSA, as women's knit cotton nightdresses. Exhibits 3, 4, and
5 are classified dependent upon their condition as imported. If
imported in equal numbers of matching sleepwear, i.e., tops and -6-
bottoms, the garments will be classified as women's knit cotton
pajamas in subheading 6108.31.0010, HTSUSA. If imported
separately (shipments of only tops or only bottoms) or if
imported as extra components without a matching top or bottom in
a shipment, exhibits 3, 4, and 5 are classifiable as similar
articles to nightdresses and pajamas in subheading 6108.91.0030,
HTSUSA.
Therefore, the specific tariff shift rules which must be met
in order to qualify as an originating good are as follows:
General Note 12(t)/61.32:
A change to subheading 6108.31 from:
(A) tariff item 6002.92.10, provided that the
good, exclusive of collar, cuffs, waistband,
elastic or lace, is wholly of such fabric and
the good is both cut and sewn or otherwise
assembled in the territory of one or more of
the NAFTA parties, or
(B) any other chapter, except from headings 5106
through 5113, 5204 through 5212, 5307 through
5308 or 5310 through 5311, chapter 54, or
headings 5508 through 5516 or 6001 through
6002, provided that the good is both cut (or
knit to shape) and sewn or otherwise
assembled in the territory of one or more of
the NAFTA parties.
General Note 12(t)/61.34:
A change to subheadings 6108.91 through 6108.99 from
any other chapter, except from headings 5106 through
5113, 5204 through 5212, 5307 through 5308 or 5310
through 5311, chapter 54, or headings 5508 through 5516
or 6001 through 6002, provided that the good is both
cut (or knit to shape) and sewn or otherwise assembled
in the territory of one or more of the NAFTA parties.
As the tariff shift which occurs in Mexico is from yarn to
garments of 6108.31 or 6108.91, and the garments are both cut and
sewn in Mexico, the garments at issue qualify as originating
goods for NAFTA preferential treatment.
HOLDING:
Exhibits 1 and 2 are classifiable in subheading
6108.31.0010, HTSUSA, as women's knit cotton nightdresses. Goods
classified therein fall in textile category 351 and are dutiable -7-
at a rate of 9 percent ad valorem. As an originating good under
the NAFTA, exhibits 1 and 2 are dutiable at 8.1 percent ad
valorem as products of Mexico. Exhibits 3, 4, and 5 are
classified dependent upon their condition as imported. If
imported in equal numbers of matching sleepwear, i.e., tops and
bottoms, the garments will be classified as women's knit cotton
pajamas in subheading 6108.31.0010, HTSUSA. If imported
separately (shipments of only tops or only bottoms) or if
imported as extra components without a matching top or bottom in
a shipment, exhibits 3, 4, and 5 are classifiable as similar
articles to nightdresses and pajamas in subheading 6108.91.0030,
HTSUSA. Goods classified therein fall within textile category
350. As originating goods under the NAFTA, exhibits 3, 4, and 5
classified in 6108.31.0010, HTSUSA, or 6108.91.0030, HTSUSA, are
dutiable at 8.1 percent ad valorem as products of Mexico. As
originating goods under the NAFTA, these garments are not subject
to textile quota restraints. See, Annex 300-B, Appendix 3.1(B)
of the NAFTA.
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