CLA-2 RR:TC:TE 959084 CAB
Allan H. Kamnitz, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, NY 10004
RE: Reconsideration of NY A80370, dated March 13, 1996; sleepwear
vs. outerwear; Heading 6107; Heading 6103; Heading 6110
Dear Mr. Kamnitz:
This is in response to your inquiry of March 25, 1996,
requesting reconsideration of New York Ruling Letter (NY) A80370,
dated March 13, 1996, regarding the tariff classification certain
men's garments pursuant to the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). Your request is on behalf of
Cypress Apparel Group. Customs has reexamined the decision and
determined that the decision was in error. Customs believes NY
A80370 should be revoked to reflect the correct tariff
classification in subheadings 6107.21.0010 and 6107.91.0030,
HTSUSA. Pursuant to section 625(c)(1), Tariff Act of 1930 (19
U.S.C. 1625(c)(1)), as amended by section 623 of Title VI
(Customs Modernization), of the North American Free Trade
Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat.
2057, 2186 (1993), notice of the proposed revocation of NY A80370
was published on April 9, 1997, in the Customs Bulletin, Volume
31, Numbers 15.
FACTS:
The garments at issue are comprised of Styles 75042T,
85012T, and 95002T which are comprised of identical fabric.
Style 75042T is a man's pullover garment constructed of 100
percent cotton knit jersey material. The garment contains a rib
knit crew neckline, a V-shaped insert at the front neckline,
short sleeves, an embroidered logo located on the left chest
area, a triangular sweat patch at the back neckline, and a hemmed
bottom with side slits. Style 85012T is a pair of men's pull-on
pants made of 100 percent cotton knit jersey fabric. The pants
contain an exposed jacquard elastic waistband, a one button fly
front opening, two side seam pockets, and hemmed leg openings.
The jacquard waistband depicts the words "Tommy Hilfiger". Style
95002T is a pair of men's pull-on shorts made of 100 percent
cotton knit jersey fabric. The shorts contain an exposed
jacquard elastic waistband, a one button fly front opening, two
side seam pockets, and hemmed leg opening with side slits. The
jacquard waistband contains the words "Tommy Hilfiger".
In NY A80370 Style 75042T was classified in subheading
6110.20.2065, HTSUSA, which is the provision for men's cotton
knitted pullovers, other, other. In NY A80370 Style
85012T was classified in subheading 6103.42.1020, HTSUSA, which
provides for men's cotton knitted trousers and Style 95002T was
classified in subheading 6103.42.1050, which is the provision for
men's cotton knitted shorts.
ISSUE:
Whether the subject merchandise is classifiable as sleepwear
under Heading 6107, HTSUSA, or as outerwear garments under
Headings 6110 and 6103, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
Heading 6107, HTSUSA, provides for, among other things,
men's knitted nightshirts, pajamas and similar articles. Customs
has consistently ruled that pajamas are generally two piece
garments worn for sleeping. One piece garments used for sleeping
may be classifiable as pajamas, but such garments must cover the
entire torso. Other one piece garments used for sleeping are not
classifiable as pajamas, instead, they fit into a residual
provision within Heading 6107, HTSUSA, for similar articles.
Garments classified in this residual provision include sleep
shorts and sleep pants.
In determining the classification of garments submitted to
be sleepwear, Customs usually considers the factors discussed in
several court cases that dealt with sleepwear. In Mast
Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd
786 F.2d 144 (CAFC, April 1, 1986), the Court of International
Trade considered 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.
Finally, in Inner Secrets/Secretly Yours, Inc. v. United States,
885 F. Supp. 248 (1995), the court was faced with the issue of
whether women's boxer-style shorts were classifiable as
"outerwear" under Heading 6204, HTSUSA, or as "underwear" under
Heading 6208, HTSUSA. The court stated the following, in
pertinent part:
[P]laintiff's preferred classification is supported by
evidence that the boxers in issue were designed to be worn
as underwear and that such use is practical. In addition,
plaintiff showed that the intimate apparel industry
perceives and merchandises the boxers as underwear. While
not dispositive, the manner in which plaintiff's garments
are merchandised sheds light on what the industry perceives
the merchandise to be. Plaintiff also established that it
is considered an underwear resource, that the Hong Kong
factory which manufactured its merchandise does not produce
outerwear * * *. Further, evidence was provided that
plaintiff's merchandise is marketed as underwear. While
advertisements also are not dispositive as to correct
classification under the HTSUS, they are probative of the
way that the importer viewed the merchandise and of the
market the importer was trying to reach.
You assert that the subject garments are sleepwear and
should be classified as sleepwear under Heading 6107, HTSUSA.
You maintain that the overall construction of the garments,
including the loose-fit and the lightweight fabric construction
make them particularly comfortable and suitable for sleeping.
You have submitted pictures depicting the subject merchandise in
the sleepwear department in several different retail stores. You
emphasize the subject garments will be purchased, marketed, and
sold as pajamas or sleepwear, and that at retail a display
hangtag will be affixed to the garment indicating that the
garments are part of the Tommy Hilfiger sleepwear collection. In
support of your position, you refer to Headquarters Ruling Letter
(HQ), 957862, dated December 21, 1995 and HQ 956755, dated
November 10, 1994, for the proposition that in determining
whether garments are designed, manufactured and used sleepwear,
Customs would look to such factors as the physical
characteristics of the garment, environment of the sale,
advertising and marketing, recognition in the trade of virtually
identical merchandise, and documentation incidental to the
purchase and sale of the merchandise. In both of the cited
cases, Customs determined that lightweight loose-fitting garments
coupled with design, marketing, and purchasing data which
supported classification as sleepwear were classifiable as
sleepwear.
In Mast, supra, the court noted that, "most consumers tend
to purchase and use a garment in the manner in which it is
marketed." In light of the cited line of court cases, in
addition to the overall construction of the garments which is
associated with sleepwear, the advertising and marketing data
submitted which indicate that the garments are intended to be
used as sleepwear, Customs agrees that the garments will be
principally used as sleepwear. Thus, the subject garments are
classifiable under Heading 6107, HTSUSA.
You state in your submission that retail stores intend to
offer the garments for sale either as a pajamas ensemble or with
just the pajama bottoms being sold. Thus, in some instances, an
equal number of tops and matching bottoms are sold and in other
situations, retailers are buying more bottoms than tops. It is
important to note that if the matching tops and bottoms are
imported together in equal numbers, they will be classified as
pajamas under Heading 6107, HTSUSA. If however, unequal numbers
of tops and bottoms are imported together, the odd tops or
bottoms without a matching piece will be classified in the
residual subheading under Heading 6107, HTSUSA, for similar
articles.
Recently, in International Home Textile, Inc. v. United
States, Slip Op. 97-31, (Decided March 18, 1997) the court
classified garments very similar in construction to the subject
garments under Heading 6105, HTSUSA, and Heading 6103, HTSUSA,
as tops and bottoms, respectively. It is important to note that
the parties stipulated that the garments therein were considered
"loungewear" and the issue was whether "loungewear" was
classifiable as outerwear under Headings 6105 and 6103, HTSUSA,
or as sleepwear under Heading 6107, HTSUSA. The court further
found during trial that the garments were primarily used for
lounging and not for sleeping. The facts of the instant case are
distinguishable from the facts of International Home. The
importer in this instance is contending that the subject garments
are primarily used for sleeping and has submitted data evidencing
that the garments are designed, marketed, and sold as sleepwear.
The importer does not assert that the instant garments are being
worn primarily for lounging and the data that he has submitted
supporting his claim that the garments are sleepwear has been
instrumental in Customs belief that the subject garments are
properly classifiable as sleepwear. If there was evidence that
the subject garments were primarily being worn for lounging, then
reliance on International Home would be helpful in determining
the proper tariff classification. There was no evidence in
International Home that the garments therein were considered as
any other commodity other than loungewear.
HOLDING:
Based on the foregoing, if Style 75042T is imported in equal
quantities and sizes with either Style 85012T or Style 95002T,
they are classified as pajamas in subheading 6107.21.0010,
HTSUSA, which is the provision men's knitted pajamas, of cotton.
The applicable rate of duty is 9.3 percent ad valorem and the
textile restraint category is 351. If the bottoms are imported
separately or without matching tops of corresponding quantities
and sizes, the garments are classified in subheading
6107.91.0030, which provides for men's other knitted sleepwear.
The applicable rate of duty is 9.1 percent ad valorem and the
textile restraint category is 351. Customs is assuming these
garments are subject to the Column 1 General rates of duty.
NY A80370 is hereby revoked.
In accordance with section 625, this ruling will become
effective 60 days from its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
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 renegotiations and
changes, to obtain the most current information available, we
suggest that 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 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
Tariff Classification
Appeals Division