CLA-2 OT:RR:CTF:TCM H040736 CkG
Port Director
Customs and Border Protection
237 West Service Road Champlain, NY 12919
RE: Internal Advice Request 8/21; Tariff classification of girls’ knitwear
Dear Port Director,
This is in response to your correspondence, dated September 16, 2008, forwarding a ruling request by Jammers Apparel Group, requesting a ruling on girls’ apparel separates pursuant to 19 CFR 177.11. At issue is the classification of the merchandise as loungewear under Heading 6104, HTSUS, or as sleepwear under Heading 6108, HTSUS.
FACTS:
Style number 27418 is a 100% brushed spun polyester two-piece ensemble. The shirt contains a notched collar, five buttons, two pockets, and long sleeves with pink cuffs, overlock stitching and satin finishing. The pockets are approximately 5 inches deep and 4.5 inches across and located three inches from the shirt’s bottom. Piping and trim on the shirt is pink, with a pattern of rainbows, hearts, flowers and stars on a blue background. The pants possess an elasticized waistband and a draw cord around the waist, with unfinished stitching surrounding the waistband and each leg bottom. The subject garments are part of the importer’s Dots and Dreams Collection. The garment tags describe the apparel as “sleep couture.” The importer further claims that the garments are marketed and tagged as sleepwear, and sold in stores with “other foundation articles.”
ISSUE:
Whether the subject merchandise is classifiable as outerwear of heading 6104, HTSUS, or sleepwear of heading 6108, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUSA provisions under consideration in this case are as follows:
6104: Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted:
Ensembles:
6104.23.00: Of synthetic fibers……..
Other:
6104.23.0036: Blouses, shirts and tops (639)…….
Other:
6104.23.0032: Trousers and breeches (648)……..
* * * * *
6108: Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:
Nightdresses and pajamas:
6108.32.00: Of man-made fibers………
Girls:
6108.32.0025: Other (651)……
* * * * *
The importer contends that the product characteristics and the extrinsic information submitted establish that the subject articles are designed, manufactured and used as sleepwear. Therefore, the importer proposes that the subject apparel sets should be classified as sleepwear as opposed to multi-purpose loungewear or outerwear.
The determination of whether garments are classified as sleepwear or multi-purpose apparel is controlled by the principal use of the garments. 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. Additional U.S. Rule of Interpretation 1(a). In past rulings, CBP has stated that the most crucial factor in the classification of a garment is the garment itself. See Headquarters Letter Ruling (HQ) 966234. Several court cases have also addressed the classification of sleepwear. In St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the Court of International Trade ruled that the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear. The St. Eve court further cited several lexicographic sources, among them U.S. Customs’ Textile Category Guidelines for Fabric and Garments Reported Under Various Textile Categories, which defined “pajamas” as “un upper part of pullover or coat style, with long, short or no sleeves and a lower part of short, intermediate or trouser-like garments…Most pajamas are sleepwear, but the term and the category include others such as beach, lounging and hostess pajamas.”
Further, 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.
In a recent informed compliance publication, CBP provided basic definitions of apparel terms that are commonly utilized in the HTSUSA and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. The informed compliance publication describes pajamas as follows:
Pajamas consist of two components covering the upper and lower torso. The upper part, may be a pullover or shirt style, with long, short or no sleeves and a lower part, short, intermediate, or long trouser-like garments or of any style panties. The lower part sometimes encloses the
feet… Women’s sleepwear (pajama) tops and (pajama) bottoms, if imported in the same shipment in equal numbers of tops and bottoms that match as to design, style, coloring and size, would be classified as pajamas.
See CBP Informed Compliance Publication on Classification: Apparel Terminology under the HTSUS.
When ruling on similar merchandise in the past, CBP’s policy has been to carefully examine the physical characteristics of the garments in question. When this has not proven substantially helpful, we consider other extrinsic evidence 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, i.e., purchase orders, invoices, and other internal documentation. It should be noted that CBP considers these factors in totality and no single factor is determinative of classification as each factor viewed alone may be flawed. See HQ 964513, dated February 11, 2002.
The styling of the subject merchandise is characteristic of a pajama, as described in the Informed Compliance Publication and the Textile Category Guidelines cited to by the CIT in St. Eve. Our decision on the classification of these garments is based largely on the garments themselves, i.e., their fabrication and design, as well as the fact the matching top and bottom pieces are imported together and in equal numbers. However, additional support for classification of the instant garments as pajamas is also provided by the garment tags, which label the apparel as “sleep couture.” The importer further claims that the garments are marketed and tagged as sleepwear, and sold in stores with “other foundation articles.” The CIT in St. Eve found that consumers tend to use merchandise in the same manner as it is advertised and marketed, and that they shop for outerwear in outerwear departments and for sleepwear in sleepwear departments. St. Eve International, Inc. at 228. While nothing prevents the instant garments from being used as outerwear or as loungewear—they are not too shear or revealing for wearing in public—we find, based on the information above, that the use of the instant garments as sleepwear is likely to exceed any other use.
HOLDING:
By application of GRI 1, style # 27418 is classified in heading 6108, HTSUS,
specifically subheading 6108.32.0025, HTSUS, which provides for “Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightdresses and pajamas: Of man-made fibers...: Girls: Other.” The 2009 column one, general rate of duty is 16% ad valorem.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division