CLA 2 RR:CR:TE 960866 SG
TARIFF NO: 6105.10.0010; 6103.42.1020; 6103.42.1050
Port Director
200 East Bay Street
Charleston, South Carolina 29401
RE: Protest No 1601-97-100043; Classification of men’s garments; sleepwear vs. loungewear
Dear Sir:
This is in response to the request for further review of Protest No. 1601-97-100043 timely filed on February 19, 1997, by Host Apparel, Inc. concerning the proper classification of various styles of men’s knit garments which were imported from Turkey through the Port of Charleston. The protest involves 3 entries covering 51 styles of knit shirts, shorts and pants which were classified when entered on August 28, 1996, October 16, 1996, and October 17, 1996, as pants in subheading 6103.42.1020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as shorts in subheading 6103.42.1050 HTSUSA, and as knit shirts in subheading 6105.10.0010, HTSUSA. The importer has protested the classification and claims the proper classification of these garments is as sleepwear under subheading 6107.91.0030, HTSUSA or as other garments in subheading 6114.20.0005, HTSUSA.
FACTS:
Twenty-five samples were submitted along with style sheets. Also submitted was a summary sheet which Customs requested in an effort to clarify the style numbers of the protested garments. We have used this summary sheet to identify the styles protested on each entry. Since the last three digits of the style number refer solely to the color of the garment, we have omitted these three digits from the style numbers used herein. In so doing the number of styles we need to specifically address has been reduced, as the rest will be classified similarly.
The styles involved in the above protest are listed below and are grouped as shirts, pants or shorts.
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SHIRTS:
*Style F238 is a men's shirt constructed from 100 percent cotton, waffle knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F242 (same as Style F334) is a men's shirt constructed from 100 percent cotton, double knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a five button, partial front opening; long sleeves with rib knit cuffs; and a hemmed bottom.
* Style F249 - neither a sample nor a sketch were found.
*Style F250 (same as Style F325) is a men's shirt constructed from 100 percent cotton, all-over screen printed jersey knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F323 is a men's shirt constructed from 100 percent cotton, all-over screen printed jersey knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F325 is a men's shirt constructed from 100 percent cotton, all-over screen printed jersey knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F327 is a men's shirt constructed from 100 percent cotton, jersey knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F334 is a men's shirt constructed from 100 percent cotton, double knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a five button, partial front opening; long sleeves with rib knit cuffs; and a hemmed bottom.
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*Style F351 is a men's shirt constructed from 100 percent cotton, jersey knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F352 is a men's shirt constructed from 100 percent cotton, all-over screen printed jersey knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
* Style F363 is a men's shirt constructed from 100 percent cotton, waffle knit fabric which has more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a Henley neckline; a three button, partial front opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
*Style F368 is a men's shirt constructed from 100 percent cotton, waffle knit fabric which measures more than 10 stitches per linear centimeter counted in both the horizontal and vertical directions. The garment has a mock turtleneck neckline; a partial front, zippered opening; long sleeves with rib knit cuffs; a sweat patch at the rear neckline; and a hemmed bottom.
PANTS:
*Style F227 (same as Style F358) is a men's pair of pants constructed from 100 percent cotton, waffle knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style F245 (same as Style F309) is a men's pair of pants constructed from 100 percent cotton, double knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style F247 (same as Style F309) is a men's pair of pants constructed from 100 percent cotton, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
* Style F248 is a men's pair of pants constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waist band with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style F309 is a men's pair of pants constructed from 100 percent cotton, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
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*Style F328 is a men's pair of pants constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style F349 is a men's pair of pants constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style F358 is a men's pair of pants constructed from 100 percent cotton, waffle knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
* Style F381 is a men's pair of pants constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waist band with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style FTO4399 (same as Style F328 in tall sizes) is a men's pair of pants constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
*Style FXO4399 (same as Style F328 in large sizes) is a men's pair of pants constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; side seam pockets; and covered elastic at the ankles.
SHORTS:
*Style F239 (same as Style F360) is a pair of men's shorts constructed from 100 percent cotton, waffle knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; a rear patch pocket; and hemmed leg openings.
*Style F244 (same as Style F333) is a pair of men's shorts constructed from 100 percent cotton, double knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; a rear patch pocket; and hemmed leg openings.
*Style F320 is a pair of men's shorts constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; a rear patch pocket; and hemmed leg openings.
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*Style F321 (same as Style F320) is a pair of men's shorts constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; a rear patch pocket; and hemmed leg openings.
*Style F350 is a pair of men's shorts constructed from 100 percent cotton, all-over screen printed, jersey knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; a rear patch pocket; and hemmed leg openings.
* Style F360 is a pair of men's shorts constructed from 100 percent cotton, waffle knit fabric. The garment has no fly and features a covered elastic waistband with an outside drawstring; a rear patch pocket; and hemmed leg openings.
The pants were classified in subheading 6103.42.1020, HTSUSA, dutiable at the rate of 16.9 percent ad valorem and subject to textile category 347. The shorts were classified in subheading 6103.42.1050, HTSUSA, dutiable at the rate of 16.9 percent ad valorem and subject to textile category 347. The shirts were classified in subheading 6105.10.0010, HTSUSA, dutiable at the rate of 20.7 percent ad valorem and subject to textile category 338.
The importer is of the opinion that the merchandise should be properly classified in subheading 6107.91.0030, dutiable at 9.2 percent ad valorem and subject to textile category 351.
ISSUE:
Whether the subject merchandise is properly classifiable as sleepwear under Heading 6107, HTSUS, or as outerwear garments under heading 6103, HTSUS and 6105, HTSUS, as appropriate?
LAW AND ANALYSIS:
Classification of goods under the HTSUS 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, HTSUS, provides for, inter alia, men’s nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two piece garments worn for sleeping. One piece garments are not classifiable as pajamas. Sleep shorts and sleep pants used for sleeping fall into a residual provision within heading 6107, HTSUS, for similar articles.
If it is determined that the subject bottoms and tops are classifiable as outerwear or
loungewear, the applicable heading for the bottoms is heading 6103, HTSUS, which provides for,
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inter alia, men’s trousers and shorts; and, for the tops, heading 6105, HTSUS, which provides for men’s shirts.
In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases that addressed sleepwear. In Mast Industries,
Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 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,
HTSUS, or as “underwear” under heading 6208, HTSUS. 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.***
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.
Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 97-31, March 18, 1997, which classified garments similar to those at issue here as loungewear in heading 6103, HTSUS. The court therein stated:
Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court
finds no basis in the exhibits, the witness testimony, or the loungewear’s construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn at
informal social occasions in and around the home, and for other individual, non private activities in and around the house e.g., watching movies at home with guests, barbequing
at a backyard gathering, doing outside home and yard maintenance work, washing the car,
walking the dog, and the like....
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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, Inc. v. United States, 16 C.I.T. 407 (May 21, 1992). 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 HQ 955341 of May 12, 1994.
Counsel indicates that the importer, Host Apparel, Inc., is a sleeepwear/underwear company and that Host’s garments are sold throughout the country to underwear and sleepwear departments, and not to sportswear departments or specialty shops. Counsel argues the garments are sold and used as sleepwear and loungewear, i.e., for use in the privacy of one’s home. It is Host’s position that the garments are of a thin, cotton, clinging, jersey fabric and are not outerwear.
Customs does not find the fact that the garments at issue here are sold by Host Apparel to underwear and sleepwear departments of particular significance. What we do find of importance is the garments themselves and the manner in which the garments will be presented to the public.
In HQ 960432 dated August 22, 1997, we stated:
***With respect to the bottoms that will feature no fly and side seam pockets, it is the opinion of this office that bottoms with the combination of those two features are not indicative of a sleepwear bottom but a multi-purpose garment that may (and probably will) be worn for purposes other than sleeping. These bottoms can easily make the transition from inside the home (a private setting) to outside the home ( and a more social environment). The lack of fly makes them suitable for modesty purposes and the presence of pockets makes them suitable for modesty purposes and the presence of pockets makes them a comfortable and useful outerwear garment to carry keys, money, identification and similar small objects. Additionally, even for those garments that lack both the fly and the side seam pockets, we find the absence of the fly on these bottoms indicative of a multi- purpose garment.
In the instant case, a physical examination of the bottoms at issue reveals several features which make them suitable for modesty purposes. The pants have side seam pockets and elastic at
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the ankle; the shorts have rear patch pockets hemmed leg bottoms; and both the shorts and pants have no fly openings. Additionally, even if the bottoms were to lack both the fly and the side seam pockets, the absence of the fly on the bottoms is not a useful feature on sleepwear, but on loungewear or a multipurpose garment it serves to ensure modesty. This, as well as the other features listed above are not indicative of sleepwear, but of multi purpose garments that may (and probably will) be principally worn for the type of non-private activities named in International Home Textiles, Inc.
Examination finds that the garments bear the distinctive blue and white “Bottoms Out” brand name label in the inside rear waistband. In the Daily News Record of March 26, 1996, Host apparel was featured in an article on the sleepwear/loungewear trade. In the article, Host’s house brands were said to include “...Bottoms Out for boxers and loungewear,...”. The article pointed
out that the company foresaw “loungewear growing from 10 percent to the mid to upper teens by 1998. One key growth vehicle is the Bottoms Out brand.” The article quoted Host’s president as saying “We’ve had an explosive growth in boxers and loungewear”. In the Daily News Record of August 28, 1995, an article on the expanding loungewear trade states that these “...products can be worn for play, sleep, or just hanging around.” A review of the twelve style sheets submitted by the importer reveals none of the garments is identified as sleepwear. Rather, through nautical (Newport), retro (Twenties Flashback), and various other themes (Cabin Fever, Mixed Company), the impression is that the garments are designed for multi-purpose use whether it is sleeping, lounging, exercising, or casual at-home wear.
Although the garments may be worn to bed for sleeping, it is our opinion that their principal use is for “home comfort” and lounging. These garments can easily make the transition from inside the home (in a private setting) to outside the home (and a more social environment). In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade stated: “The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function.”
Style F248 has a size and price hang tag which identifies the garment as a lounge pant. In Mast, 92 C.I.T. 549, at 551, the court pointed out that the expert witnesses in that case agreed
"that most consumers purchase and use a garment in the manner in which it is marketed." The tag is a factor to be considered in determining how this garment is marketed and likely to be used by purchasers, though it is not determinative in and of itself.
We also note the manufacturers invoices identify the garments as Henley shirts, lounge pants or jam shorts.
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In addition, all the samples submitted are made of fabric heavy enough for outdoor use even in cool weather.
In our view, these garments are clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are presented as multi purpose garments and, in fact, nothing provided suggests the garments are designed or intended for wear while sleeping. Thus, Customs does not agree that these garments are presented to consumers as sleepwear garments; they are held out as casual loungewear for all day wear if desired.
The importer has provided no advertising showing these garments as sleepwear, nor are the garments identified anywhere on the invoices as sleepwear. The garments are more likely to give the ultimate consumer the idea that they are items of general apparel, rather than sleepwear.
The Customs National Import Specialist for this merchandise provided us with numerous advertising materials which demonstrate that the trend today for the type of garments in question is for mix and match loungewear as shown by the following sampling of the articles we received. For example, in a number of J.C. Penny Catalogs, garments are advertised as cotton and polyester thermal knit loungewear consisting of a Henley style top trimmed with plaid flannel, long pants with no fly and jam shorts with plaid flannel trim on the waistband. These garments are almost identical in styling and fabric to Sample F358 and Sample F360. The garments are sold and priced separately to be used as mix and match loungewear coordinates. A September 1996 Kohl’s advertisement featured a Henley style top and a pair of pants with plaid trim on the shirt placket and waistband advertised as loungewear. The advertising copy reads “Ideal casual wear to get comfy in!” Pajamas were advertised separately. In an August 1996 Target advertisement, a Henley top or V notch Tee, shorts and pants are advertised as mix and match loungewear coordinates. A summer 1996 Marshall Field advertisement shows college logo loungewear, including a thermal knit boxer with exposed elastic waistband and thermal knit Henley style shirt, sold as loungewear separates.
An articles on the underwear/loungewear trade in the Daily News Record, of October 14, 1994, noted the trend towards underwear/loungewear as activewear and gymwear. The article states that:
Manufacturers that are adopting a sportswear-driven approach to underwear and loungewear are expected to ring up big business for spring ‘95, as versatile briefs, boxers, T-shirts, lounge tops and longer, looser lounge pants fuel the furnishings field...underwear and loungewear can double as activewear/gymwear...Knit bottoms are now being worn externally...because they offer much more versatility and have a dual purpose...Loungewear is not just homewear anymore.
In discussing how loungewear is promoted and displayed at the retail level, the article continued:
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The loungewear area is made up of coordinated separates...The whole concept is towards coordinated separates that are...sold as separates to give the consumer the option to mix and match. Lounge pieces and coordinated separates have a much more diverse usage factor.
An article supplied by the NIS from the Daily News Record, dated August 28, 1995, on loungewear reads:
Loungewear is changing the way men dress at home, after work and on the weekends. Here SLOUCHERS by HAMPTON INDUSTRIES’ version of what to wear after hours a natural and navy striped cotton pique cross tie lounge shirt and natural cotton pique lounge shorts.
Based on our examination of the garments supplied, we find that they are loungewear, i.e., loose, casual clothes that are worn in the home for comfort. Their fabric, construction and design are suitable for the type of nonprivate activities named in International Home Textile, Inc. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for “home comfort” and lounging.
Taking into consideration all of the information before us, especially the garments themselves and the marketing and advertising, Customs believes these garments are properly
classified as loungewear garments, not as sleepwear.
HOLDING:
The knit pants with no fly opening, side seam pockets, and elastic hemmed leg bottoms are classified in subheading 6103.42.1020, HTSUSA, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other
than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Trousers, breeches, and shorts: Trousers and breeches: Men’s.” The applicable 1996 general column one rate of duty is 16.9 percent ad valorem and the textile quota category is 347.
The jams are classified as men’s knit cotton shorts in subheading 6103.42.1050, HTSUSA, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and
brace overalls, breeches and shorts: Of cotton: Trousers, breeches and shorts: Shorts: Men’s.” The applicable 1996 general column one rate of duty is 16.9 percent ad valorem and the textile quota category is 347.
The Henley shirts with button plackets ( Styles F238, F242, F249, F250, F323, F325, F327, F334, F351, F352, and F363) and the shirt with the zippered neck opening (Style F368) are classified under subheading 6105.10.0010, HTSUSA, which provides for “Men’s or boys’ shirts,
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knitted or crocheted: Of cotton: Men’s.” The 1996 general column one duty rate is 20.7 percent ad valorem. The textile quota category is 338.
The protest under consideration should be DENIED.
In accordance with Section 3A (11) (b) of Customs Directive 0993550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make this decision available to Customs personnel, the public on the Customs Home page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division