RR:CR:TE 963442 CMR
Ms. Jane B. O’Dell
Vice President, International
Trade & Customs Compliance
Limited Distribution Services
Seven Limited Parkway
Reynoldsburg, Ohio 43068
RE: Classification of matching tops and shorts; sleepwear v.
loungewear (outerwear); 6108, HTSUS
Dear Ms. O’Dell:
This is in response to your correspondence of June 3, 1999, requesting a ruling on the classification of a garment set consisting of two styles of tops and a pair of shorts. The importer will be Lane Bryant, Inc., a subsidiary of The Limited. You state that the country of origin of the goods is the Philippines and the anticipated port of entry will be Columbus, Ohio.
FACTS:
The garments at issue consist of two differently styled matching tops and a pair of shorts. The garments are made of 100 percent cotton pointelle knit fabric which is lightweight, weighing 185 grams per square meter.
The first top, style 7044, has a full front opening with a five button closure, short sleeves, and overlock stitching at the bottom of the garment. The overlock stitching is done in such a way as to create a ruffled effect.
The second top, style 7045, is camisole styled with ¼-inch elasticized adjustable straps, a V-neckline in front with lace trim, and overlock stitching at the bottom of the garment. Again, the overlock stitching is done in a manner to create a ruffled effect. The upper edge of the back of the garment is cut straight across from side seam to side seam and the back and arm openings are trimmed with elasticized fabric.
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The shorts, style 7051, are pull-on shorts with a ¾-inch covered elasticized waistband. The leg bottoms are finished with overlock stitching which creates a ruffled effect. You describe the shorts as having flared leg openings.
In your submission, you state that the garments are coordinated in color and are sold in the intimate apparel section of the Lane Bryant retail stores under the “REAL WEAR” label. They are sold as mix or match so that a customer can purchase the shorts and one or both of the tops.
You assert that these garments are sleepwear separates. However, you are unable to provide any advertising or written material on the manner in which the garments are marketed. You rely on the physical characteristics of the garments and the segregation of the garments to the intimate apparel section of the retail stores.
ISSUE:
Are the garments at issue classifiable as sleepwear separates of heading 6108, HTSUS, or are they classifiable as outerwear/loungewear in the appropriate headings of Chapter 61?
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 6108, HTSUS, provides for, among other things, women’s nightdresses, pajamas, and similar articles, knitted or crocheted. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), which represent the official interpretation of the tariff at the international level, do not offer much assistance in this case. The EN for 6108 does little more than restate the coverage described in the heading language, i.e, the EN provides in relevant part:
This heading covers two separate categories of knitted or crocheted clothing for women or girls, namely. . . (underclothing) and nightdresses, pyjamas, negliges, bathrobes (including beachrobes), dressing gowns and similar articles.
* * *
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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 "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, 16 CIT 407 (1992), 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. 16 CIT 407. 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.
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With these points in mind, Customs has reviewed your claim that these garments are classifiable as sleepwear. The physical characteristics of these garments are ambiguous. The styling and fabric are not clearly indicative of sleepwear. As such, we must look beyond the garments themselves.
In terms of marketing, none has been presented with these garments. However, the National Import Specialist who handles this merchandise has received information from counsel for Lane Bryant in connection with previously issued pre-classification decisions on other garments which are marketed under the “REAL WEAR” label. Based upon that information, Customs has accepted the assertion that the “REAL WEAR” label is used exclusively for items sold in the intimate apparel department of Lane Bryant stores and that these departments are set apart from other apparel. Thus, based upon the information regarding the label line, the segregation of intimate apparel within the stores, and design information regarding the specific garments, Customs has classified other garments which are part of the “REAL WEAR” line as sleepwear.
As the specific garments before us are ambiguous, and due to the previously submitted information regarding garments which are part of the “REAL WEAR” line, Customs will accept the assertion in this case that these garments are sleepwear separates. However, Customs is cognizant that clothing lines sometimes change and broaden in scope. Should Customs be presented with garments which are less ambiguous than the ones before us here and that based upon their physical attributes are clearly of a class or kind known and used as casual loungewear, we will not hesitate to classify the garments as such regardless of the label under which they are marketed.
HOLDING:
If imported separately, or without a matching component to comprise pajamas, the garments at issue, styles 7044, 7045 and 7051, are classifiable as other sleepwear garments in subheading 6108.91.0030, HTSUSA. This provision provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton: Other.” Goods classified in subheading 6108.91.0030, HTSUSA, are dutiable at the general column one rate of 8.8 percent ad valorem and are subject to textile category 350.
If imported in shipments containing equal numbers (pairs) of matching tops and bottoms, the garments will be classified as women’s knit pajamas in subheading 6108.31.0010, HTSUSA. This provision provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
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Nightdresses and pajamas: Of cotton: Women’s.” Goods classified in subheading 6108.31.0010, HTSUSA, are dutiable at the general column one rate of 8.8 percent ad valorem and are subject to textile category 351.
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