CLA-2 RR:CR:TE 961036 RH
Patrick D. Gill, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Request for ruling on the classification of garments from El
Salvador; sleepwear;
loungewear; heading 6103; heading 6105; heading 6107
Dear Mr. Gill:
This is in reply to your letter of June 27, 1997, on behalf of
your client, Hampton Industries, Inc., requesting a ruling on the
classification of garments manufactured in El Salvador.
You sent three samples of the garments to aid us in our
determination.
A member of my staff met with you and Mr. Bob Harris, President
of the Hampton Sleepwear Division of Hampton Industries, Inc., on
January 30, 1998, to discuss the issues raised in the ruling
request.
FACTS:
Three garments are at issue in this case. One is a Henley style
top in size "XL." It features a rib knit Henley neckline, a
partial front opening with three button closures, long sleeves
with rib knit cuffs and a hemmed bottom with side slits and a
tail. The next garment is a pair of size "L" short bottoms.
They have a tunnel elastic waistband, side seam pockets, hemmed
leg openings and no fly. The last garment is a pair of long
bottoms. Like the short bottoms, they have a tunnel elastic
waistband and side seam pockets. They also have rib knit cuffs
at the ankles and no fly.
All of the garments are constructed from 55 percent cotton, 45
percent polyester thermal knit fabric which measures more than
ten stitches per linear centimeter counted in both horizontal and
vertical directions.
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You contend that the garments imported together in shipments
containing equal numbers of matching tops and bottoms are
classifiable in subheading 6107.21.0010 of the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), as men's
pajamas. If imported separately, you state that they are
classifiable under subheading 6107.91.0030, HTSUSA, as men's
sleepwear.
ISSUE:
Whether the garments described above are classifiable as pajamas
or sleepwear under heading 6107, HTSUSA, or under headings 6103,
HTSUSA, and heading 6105, HTSUSA, as outerwear garments?
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, taken in
their appropriate order. Heading 6107 encompasses "Men's or
boys' underpants, briefs, nightshirts, pajamas, bathrobes,
dressing gowns and similar articles, knitted or crocheted."
Classification of garments as sleepwear is based upon use.
Additional U.S. Rule of Interpretation 1(a), HTSUSA, 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.
Customs considers factors discussed in several decisions by the
Court of International Trade (CIT) in determining the
classification of garments submitted to be 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 cited several lexicographic sources, among them Webster's
Third New International Dictionary which defined "nightclothes"
as "garments to be worn to bed." The court determined that the
garment at issue in that case 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 that the garments at issue in
that case were manufactured, marketed and advertised as nightwear
and were chiefly used as such.
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In determining whether a particular garment is to be used for
sleepwear, the garment 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). Moreover, "most consumers tend to
purchase and use a garment in the manner in which it is sold. Id.
However, when presented with a garment which is somewhat
ambiguous and not clearly recognizable as sleepwear, 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 documentation.
Although consideration is given to the way in which merchandise
is marketed and sold, 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, Headquarters Ruling Letter (HQ) 955341, dated
May 12, 1994, and rulings cited therein; HQ 952105 of July 1992;
HQ 085672 of October 29, 1989; HQ 955088 of December 14, 1993.
The manner in which an article is sold and marketed is weighed in
conjunction with other factors such as the physical
characteristics of the garment.
Customs also refers to the Guidelines for the Reporting of
Imported Products in Various Textile and Apparel Categories, CIE
13/88 (1988), for guidance in determining whether a garment has
characteristics of sleepwear. At page twenty-four, the
Guidelines state that "the term 'nightwear' means 'sleepwear' so
that certain garments worn in bed in the daytime . . . are
included."
Garments that are not sleepwear may fall into various fashion
categories besides sportswear, including "loungewear" or "leisure
wear." Customs has long held that loungewear includes a variety
of loose, comfortable casual clothes that can be worn in a
variety of settings. See, HQ 082624, dated March 22, 1989.
Moreover, in a recent decision the CIT held that articles
encompassed under heading 6107 (underpants, briefs, nightshirts,
pajamas, bathrobes, dressing gowns and similar articles) are
characterized by a sense of privateness (underpants and briefs)
or private activity (sleeping, bathing and dressing).
International Home Textile, Inc. v. United States, CIT Slip. Op.
97-31, dated March 18, 1997. The court pointed out that
loungewear, on the other hand, may be worn at informal social
occasions in and around the home, and for other nonprivate
activities such as watching movies with guests, barbequing at a
backyard gathering, doing outside home and yard maintenance work,
washing the car, walking the dog, etc. We note the parties
stipulated that the garments in International Home Textile were
considered "loungewear" and the issue was whether "loungewear"
was classifiable as outerwear or as sleepwear. The court found
that the garments in that case were primarily used for lounging
and not for sleeping. In this case, however, the importer
claims that the garments are sleepwear.
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You state that the garments at issue are designed, manufactured
and marketed by your client as sleepwear/pajamas and are sold to
sleepwear buyers. You further submit that the garments are
suitable and comfortable for sleeping due to their loose fit and
thermal knit fabric. In support of those claims, you submitted a
letter from the men's sleepwear buyer at Meijer's confirming that
the garments will be marketed and sold in the men's sleepwear
department as sleepwear. In addition, you cite three ruling in
which Customs classified flannel garments as pajamas or articles
similar to pajamas. HQ 956202, dated September 29, 1994; HQ
957757, dated April 11, 1995; NY A81955, dated April 18, 1996.
During the meeting on January 30, 1998, you provided our office
with sample purchase orders from Hampton Sleepwear Division.
Your client states that Hampton Sleepwear Division only sells
sleepwear and has only one type of purchase order, which depicts
garments in sizes from "XS" to "4XL." You also gave us pages
from a Fall 1997 Hampton Industries catalog depicting mens and
boys flannel and thermal "sleepwear coordinates", which look
similar to the garments at issue. Finally, you submitted a
letter from the buyer of Target Stores' children's underwear and
sleepwear departments, which reads:
It is my intent as a buyer of children's sleepwear, that the
Thermal and Double Brushed flannel program that you are
putting together for us be sold as sleepwear. To this end,
the product must meet all CPSC guidelines for children's
sleepwear. The product will be merchandised in the
sleepwear department, along with all other pajamas.
You also cited HQ 959940, dated July 15, 1996, in which we held
that documentation received by our office, i.e., purchase orders,
contracts and letters from buyers confirming that the garments
are being purchased by their department stores as sleepwear for
display in sleepwear departments, was sufficient to classify
"borderline" garments as sleepwear as opposed to loungewear. See
HQ 959084, dated July 18, 1997.
Customs National Import Specialist 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 the Fall and Winter J.C. Penny Catalog, garments
advertised as cotton an 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. 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. Pajamas were
advertised separately. In an August 1996 target advertisement,
as Henley top or V-notch Tee, shorts and pants are sold as mix
and match loungewear coordinate.
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Even more persuasive that the garments under consideration are
loungewear is an article supplied by the NIS from the Dailey New
Record, dated August 25 and 28, 1995, on loungewear. It 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.
You also submitted several newspaper advertisements for flannel
sleepwear. However, based on our examination of the garments up
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 lounging.
HOLDING:
The Henley style shirt is classifiable in subheading
6105.10.0010, HTSUSA. It is dutiable at the general one column
rate at 20.5 percent ad valorem, and the textile category is 347.
The pants are classifiable in subheading 6103.42.1020, HTSUSA,
and the shorts are classifiable in subheading 6103.42.1050,
HTSUSA. Both the pants and the shorts are dutiable at the
general one column rate at 16.7 percent ad valorem, and the
applicable textile category is 347.
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 importing the merchandise to determine the
current applicability of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division