CLA-2 R:C:T 958254 CMR
Mr. James Martino
Russell-Newman Inc.
600 N. Loop 288
Denton, Texas 76202
RE: Classification of certain men's knit garments;
Reconsideration of New York Ruling Letter (NYRL) 807639 and
NYRLs 807640 and 807641; sleepwear v. loungewear/outerwear;
submission of new samples
Dear Mr. Martino:
This is in response to your submission of May 26, 1995,
requesting Customs reconsider the classification decisions in
NYRLs 807639, 807640 and 807641, all of which were issued on
April 6, 1995. Samples were submitted with your request for
reconsideration. However, these samples differ from the original
samples submitted and ruled upon in the New York ruling letters
at issue. This office will reconsider the subject rulings in
regard to the initially submitted samples. We will classify the
new samples submitted with this request as separate and apart
from the reconsideration issue.
FACTS:
NYRLs 807639, 807640 and 807641 classified the following
garments, styles 75002T and 75012T (NYRL 807639), style 950027
(NYRL 807640), and style 85002T (NYRL 807641) as men's pullovers,
shorts, and pants, respectively. You have requested
reconsideration of these decisions claiming the garments are
properly classifiable as men's sleepwear garments.
All of the garments are constructed of 100 percent cotton
jersey knit fabric containing more than nine stitches per two
centimeters counted in the horizontal direction. The fabric of
each garment is fairly substantial, medium weight, knit fabric.
The garments will be imported from Peru.
Style 75002T is a men's size large, pullover with a rib knit
crew neckline, long sleeves with rib knit cuffs, and a straight -2-
hemmed bottom with three-inch side slits. The garment has a
woven triangle-shaped overlay at the center front neckline and a
triangular knit fabric sweat patch sewn to the inner back
neckline. A strip of knit fabric measuring four inches by seven-
eights of an inch, and with a woven "Tommy Hilfiger" label
attached, is cross stitched to the center rear neckline below the
nape of the neck.
Style 75012T is men's pullover with short hemmed sleeves, a
rib knit crew neckline, and a straight hemmed bottom with three-
inch side slits. The garment has a woven triangle-shaped insert
at the center front neckline and a triangular knit fabric sweat
patch sewn to the inner back neckline. A hanger loop of knit
fabric measuring four inches by seven-eights of an inch, and with
a woven "Tommy Hilfiger" label attached, is cross stitched to the
center rear neckline below the nape of the neck.
Style 950027 is a pair of men's knit shorts. The shorts
have an exposed, jacquard elastic waistband which reads, "Tommy
Hilfiger". The shorts also have two side seam pockets, a rear
pieced, patch pocket with a self fabric edge, hemmed leg
openings, and no fly. The jacquard elastic waistband has an
almost four-inch piece of plain wide elastic inserted at the rear
of the waistband.
Style 85002T is a pair of men's, size large, knit pants.
The pants feature an exposed, jacquard elastic waistband which
reads, "Tommy Hilfiger". The pants also feature two side seam
pockets, a rear patch pocket, rib knit cuffs at the ankles, and
no fly.
Styles 75002T and 75012T were classified in NYRL 807639 as
men's cotton knit pullovers in subheading 6110.20.2065,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). Style 950027 was classified in NYRL 807640 as a pair
of men's cotton knit shorts in subheading 6103.42.1050, HTSUSA.
Style 85002T was classified in NYRL 807641 as a pair of men's
cotton knit pants in subheading 6103.42.1020, HTSUSA.
The new samples submitted with your request are identified
by the same style numbers as the original samples. Therefore, in
this ruling letter we will distinguish the new samples by adding
the following designation, (NS), which stands for, quite simply,
"new sample", after the style number.
The new samples differ in that all are made of a lighter
weight knit fabric from that used in the original samples. The
pants and shorts no longer have back patch pockets. A logo has
been embroidered onto the shorts and the pants; in each case,
appearing on the left in the hip area. The pants now have hemmed
leg bottoms as opposed to the previous rib knit cuffs at the -3-
ankles. The shorts have one and one-half inch side slits on the
legs. Woven fabric labels have been sewn to the front center
waistband of the pants and shorts.
Style 75002T(NS) has a triangular knit fabric insert which
is the same fabric as the garment, instead of the woven overlay
in the original style 75002T. In addition, the rib knit cuffs at
the end of the long sleeves are now of a lighter weight, with
less elasticity and wider width than in the original sample.
Style 75012T(NS) has a triangular knit fabric insert which is the
same fabric as the garment, instead of the woven insert in the
original style 75012T. Both of the new samples feature sewn on
labels stitched to the center rear neckline below the nape of the
neck. These labels can be used as hanger loops and replace the
four inch by seven-eights of an inch knit fabric, with a woven
"Tommy Hilfiger" label attached, which appeared on the earlier
versions. Each of the new samples also features a screen-printed
logo at the chest.
In seeking reconsideration of the NYRLs at issue, you submit
these garments are properly classifiable as men's sleepwear for
the following reasons:
1. Every garment you sell will have a hangtag stating "Tommy
Hilfiger Sleepwear".
2. Most of your orders have been sold to large department
stores and purchased by the men's robe and sleepwear
buyers for sale in the men's furnishings department.
3. Your licensing contract with Tommy Hilfiger Inc.
precludes you from selling sportswear. Your merchandise
will not be sold or displayed in the "Tommy Hilfiger
Shop" with sportswear. You argue that "traditionally,
men do not shop the men's sleepwear department for
sportswear or outerwear."
4. You have changed the original samples to eliminate the
back pocket on the pajama pants.
5. Customs has recently issued a ruling on sleep bottoms
which had side seam pockets. You cite Headquarters
Ruling Letter 957134.
6. Your company is a sleepwear and robe company. You state
that "in the case of Tommy Hilfiger products, all of them
are represented as and purchased with the full intent of
being sold in men's robe and sleepwear departments."
-4-
ISSUE:
Are the subject garments classifiable as men's knit
sleepwear of heading 6107, HTSUSA, as claimed?
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]."
Heading 6107, HTSUSA, provides for, among other things,
men's knitted or crocheted nightshirts, pajamas and similar
articles. The Explanatory Notes (EN) for the Harmonized
Commodity Description and Coding System, the official
interpretation of the Harmonized System at the international
level, do not provide much additional information than that
provided by the language of the heading. The EN for heading 6207
provides, in part, the following:
The heading also includes nightshirts, pyjamas, bathrobes
(including beachrobes), dressing gowns and similar articles
for men or boys (garments usually worn indoors).
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. 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 which defined "nightclothes" as
"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.
The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories, CIE 13/88 (1988),
(hereinafter Guidelines), which offer guidance to the trade
community and Customs personnel as to various characteristics of
garments, state that "the term 'nightwear' is interpreted as
meaning 'sleepwear' so that certain garments worn in bed in the -5-
daytime, . . ., are included." The Guidelines indicate that
besides pajamas, other nightwear includes various articles worn
for sleeping.
Classification of garments as sleepwear is classification
based upon use. In this regard, Additional U.S. Rule of
Interpretation 1(a) provides that in the absence of context to
the contrary, a tariff classification controlled by use, other
than actual use, is to be determined by the principal use in the
United States at, or immediately prior to, the date of
importation, of goods of the same class or kind of merchandise.
In support of your claim that these garments are sleepwear
and should be so classified, you emphasize that these garments
will be purchased by the men's robe and sleepwear buyers of
stores and sold in the men's robe and sleepwear departments.
Customs has stated on numerous occasions that the location within
a store in which a garment is sold is not determinative of its
classification. Although the environment of sale is a factor
which may be considered in determining a garment's identity,
Customs recognizes that sleepwear/loungewear departments often
sell a variety of merchandise, for example, garments known as
leisure wear (i.e., loose, comfortable clothing worn in or
outside the home in a casual environment). This is especially
true in women's fashions and, in our view, becoming increasingly
true in men's fashions. See, HRL 955341 of May 12, 1994 and
rulings cited therein; HRL 952105 of July 1992; HRL 085672 of
October 29, 1989; HRL 951032 of May 7, 1992; and HRL 955088 of
December 14, 1993.
You indicate your licensing agreement with Tommy Hilfiger
Inc. precludes you from selling sportswear. The classification
issue at hand is not whether these garments are "sportswear" in
the trade, but whether they are sleepwear. Denial of
classification as sleepwear does not mean Customs views the
garments as "sportswear", but simply that we do not view the
garments to be principally used for wearing to bed for sleeping,
i.e., as sleepwear. While licensing agreements may be evidence
of intended markets or use, they are not determinative and, as in
this case, may not be particularly helpful in ascertaining a
correct tariff classification. Garments that are not sleepwear
may fall into various fashion categories besides sportswear,
including "loungewear" or "leisure wear".
In classification, the most persuasive evidence is the
garment itself. The court in Mast Industries, Inc. v. United
States, 9 CIT 549, 552, (1985), aff'd 786 F.2d 1144 (CAFC, April
1, 1986), citing United States v. Bruce Duncan Co., 50 CCPA 43,
46 C.A.D. 817 (1963), pointed out that "the merchandise itself
may be strong evidence of use." Customs believes this basic
principle is especially valid in this case. -6-
Customs has examined all of the submitted samples, original
and revised, and we believe these garments are multi-purpose
garments that may be best characterized as "loungewear". Nothing
in the construction or styling of the garments makes them
especially suitable as sleepwear or indicate that they would be
principally used as such. In fact, the fabric, design, styling
and construction of these garments makes them suitable for
various purposes, including wearing in public. Additionally,
certain features would seem to detract from a classification of
the garments as sleepwear and support classification as other
than sleepwear, such as, the lack of a fly and presence of side
seam pockets on the pants, and the manner in which the garments
are marketed and sold.
In HRL 956507 of October 11, 1994, Customs classified a pair
of men's woven cotton flannel pants as pants of heading 6203,
HTSUSA, and not as sleepwear. The pants therein were similar to
the pants and shorts at issue here in that they had side seam
pockets and no fly. In ruling the garment was not sleepwear,
Customs stated:
Likewise, the presence of a front fly is a matter of
common sense and convenience in the case of pajamas, but
such a feature might be avoided in the design of loungewear
of simple construction. The decency element associated with
wearing apparel might dictate a closure on a fly or no fly
at all in the case of loungewear, whereas in the case of
pajamas, unsecured flys are common. This understanding is
confirmed by information provided by the trade.
You have not provided any advertising information regarding
the subject garments. The only information submitted is that the
garments will be sold in men's furnishing departments or
sleepwear departments within department stores, and that the
garments will each have a hangtag affixed to them stating "Tommy
Hilfiger Sleepwear". Based upon the submission of the garments
as separates, Customs assumes these garments are indeed sold as
separates. While Customs recognizes that in women's fashions
today, mix and match sleepwear is a commercial reality, we have
not seen it in men's fashions. In women's fashions, mix and
match is often a function of not only choice in selection, but
offered to accommodate sizing variations, i.e., needing a larger
sized top than bottom, or vice versa. Customs is unaware of such
sizing difficulties in men's sleepwear. Men's sleep bottoms
(shorts or pants) are advertised, but Customs has not seen
advertisements for separate sleep tops or men's mix and match
sleepwear separates. However, Customs' National Import
Specialist who reviewed this merchandise has found several
advertisements for men's loungewear separates.
-7-
In HRL 951032 of May 7, 1992, Customs classified five cotton
jersey knit men's garments as outwear garments, although claimed
to be sleepwear. In that ruling, Customs indicated we believe
the garments were "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 to
bed for sleeping." As stated above, Customs views the subject
garments also to be loungewear, i.e., comfortable, casual attire
to be worn in or around the home, and even in some cases, on the
street.
The affixation of a hangtag to each garment stating "Tommy
Hilfiger Sleepwear" is of little significance in this case. The
garments are themselves the best evidence of their
classification. We also note that the letterhead of the
specification sheet which was submitted to Customs as part of the
original ruling request shows the Tommy Hilfiger name and logo at
the top with "Robes-Lounge-Sleepwear" appearing immediately under
it. This grouping would appear to indicate that loungewear is
grouped with sleepwear and robes. Thus, while you indicate your
company is a sleepwear and robe company, you fail to indicate if
loungewear is included in its line. The specification sheet
would seem to indicate that it is.
As to HRL 957134 of April 4, 1995, that ruling dealt with
the classification of men's woven cotton pajamas and matching
robe. We note that in that case the garments were sold
separately, however, they were advertised together. Customs
believes this ruling is distinguishable from the instant case
based upon the garments themselves and the information presented
in that case regarding marketings and advertisements.
Based upon the above analysis, the subject garments,
original and revised, are not classifiable as sleepwear. They
are classified as men's knit pants and tops.
HOLDING:
NYRLs 807639, 807640 and 807641 properly classified styles
75002T, 75012T, 950027 and 85002T.
Styles 75002T and style 75012T, original and new samples
(revised), are classified as men's cotton knit pullovers in
subheading 6110.20.2065, HTSUSA, textile category 338, dutiable
at 20.3 percent ad valorem.
Style 950027, original and new sample, is classified as
men's knit shorts in subheading 6103.42.1050, HTSUSA, textile
category 347, dutiable at 17 percent ad valorem.
-8-
Style 85002T, original and new sample, is classified as
men's knit trousers in subheading 6103.42.1020, HTSUSA, textile
category 347, dutiable at 17 percent ad valorem.
The designated textile and apparel category 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 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