CLA-2 CO:R:C:T 955633 NLP
Ms. Susan Kearney
Customs Coordinator
Wal-Mart Stores, Inc.
International Merchandising Division
702 S.W. 8th Street
Bentonville, Arkansas 72716
RE: Classification of women's loungewear vs. sleepwear; Heading
6108; Textile Guidelines; garment is the controlling factor
in classification
Dear Ms. Kearney:
This is in response to your letter of December 29, 1993, in
which you requested that we review the classification of a women's
garment that was subject to a redelivery notice. A sample of this
garment was submitted for our examination and will be returned to
you with this ruling.
FACTS:
The garment at issue, style SIKK-5LB, is a women's pullover
garment constructed from knitted fabric with a fiber content of
85% polyester and 15% cotton fleece. It is loose-fitting and
extends to approximately the wearer's calf. The garment features
a rib knit neckline, long sleeves with small rib knit cuffs and a
hemmed bottom that is rounded on each side. The garment has on
seam pockets at both side seams. In addition, an applique of a
sleeping bear is located on the upper chest portion.
According to your letter, this garment was imported under
textile category code 650. On July 23, 1993, the shipment cleared
Customs. However, on September 29, 1993, a redelivery notice was
issued stating that the merchandise was "determined to be
sleepwear, requiring a 651 visa."
It is your position that the garment at issue is a robe which
is to be worn as loungewear in the evening. Therefore, you are
requesting classification of the garment as a robe in subheading
6108.92.0030, Harmonized Tariff Schedule of the United States
(HTSUS), which provides for "[w]omen's or girls
slips,...nightdresses, pajamas, negligees, bathrobes,
dressing gowns and similar articles, knitted or crocheted: [o]ther:
[o]f man-made fibers: [o]ther: [w]omen's." In support of your
position you supplied the following information:
1) A sketch of the store plan which directs the store on where
to display the subject garment. The sketch shows the loungers and
robes at the left of the store section, while the pajamas and
sleepwear are at the right of the store section. This garment is
displayed with the loungers and robes.
2) A copy of a print advertisement depicts a woman, sitting
on a bed with an open book, who is wearing a red garment that has
a large applique depicting a bear wearing a scarf and ear muffs.
The copy reads: "Ladies Fleece Lounger, choose from assorted
bright colors and appliques. Cute novelty designs. 100% polyester.
S-L." You state that this picture is opposite pictures advertising
a Ladies' Fleece Robe and a Ladies' Brush Gown. In addition, on
the opposite page there is a picture of a young woman wearing a
cotton flannel dorm shirt and a picture of ladies' flannel gowns
or pajamas.
3) A copy of the store sign which was placed above this
merchandise. This sign depicts a lady drinking orange juice
wearing a pink garment with a large applique of a sleeping lamb
and a plaid print block. In the inset are two women: one is
wearing the instant garment, except it is purple, and the other
woman is wearing a button front garment. In this inset, one women
is holding a coffee cup and both women appear to be talking in a
kitchen setting. The print states "Fleece Loungers".
4) A copy of a listing used by the buyers which shows the
separation of the various garments into categories. The buyer's
listing of the various Department 29 Sleepwear Finelines shows the
item in question described under the section labeled as 29-05-
Loungewear. In contrast, pajamas are listed under 29-04-P.J.s.
ISSUE:
Is style SIKK-5LB classified as a robe in subheading
6108.92.0030, HTSUS, or as a nightgown in subheading 6108.32.0010,
HTSUS?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings 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 GRI's may be applied, taken in
order.
Heading 6108, HTSUS, provides for, inter alia, women's
nightdresses, pajamas, bathrobes, dressing gowns and similar
articles. The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories, (Guidelines), CIE 13/88,
November 23, 1988, on page 24, describe "nightwear" as meaning
sleepwear, including "various articles worn for sleeping, such as
nightgowns, night-shirts, 'waltz gowns,' etc." Webster's II New
Riverside University Dictionary (1984) clarifies this description
by defining "nightshirts" as "a long shirt worn in bed."
Furthermore, The Guidelines state, at page 23, that the
physical characteristics expected in dressing gowns, including
bathrobes, beach robes, lounging robes and similar articles, are
the following:
1. Looseness.
2. Length, reaching to the mid-thigh or below.
3. Usually a full or partial front opening, with or without
means of closure.
4. Sleeves are usually, but not necessarily, present.
When determining the classification of a garment, the most
persuasive evidence is the garment itself. See, HRL 088904, dated
February 19, 1992, and HRL 087843, dated December 19, 1990, where
it was held that the appearance of the garment itself was
determinative of classification. The court in Mast Industries v.
United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986),
noted that the "merchandise itself maybe strong evidence of use."
Additionally, in Mast, supra, at 552, the court stated that the
definition of "nightwear" was garments to be worn to bed. The
court held that the particular garment at issue therein was
classifiable as nightwear since it was designed, manufactured,
marketed and used as nightwear.
Based on our examination of the subject garment, we do not
believe that it is classifiable as a bathrobe, a dressing gown or
similar apparel. First, this garment does not have a full or
partial front opening. Furthermore, the garment's knit fabric
construction does not make it too warm for use as sleepwear.
Though its weight is more suited for wear during the colder fall
and winter months, this does not negate its use as sleepwear. If
this were so, all flannel sleepwear garments would not be
considered sleepwear. Moreover, features such as loose fit, a
large neckline and absence of any fasteners render this garment
particularly well-suited for wear when sleeping. In addition, the
fact that the garment has pockets and long sleeves does not
preclude it from classification as sleepwear.
Furthermore, we find that the submitted advertisements are
not dispositive of classification of this garment as a robe. For
example, in the print advertisement, while we note that the woman
is sitting rather than lying down on the bed, this nevertheless
suggests use of the garment in a sleepwear setting. While you
state that this picture is opposite pictures advertising a fleece
robe and a brushed gown, it is also opposite pictures depicting
pajamas and night shirts. In fact, the closest garment to the
subject garment is the brushed gown, not the fleece lounger. It
could also be argued that this garment is advertised next to or
alongside nightgowns or night-shirts. We also note that children's
clothing are advertised on the same page on which this garment is
pictured. The store sign states that these items are fleece
loungers and the women wearing the garments are not depicted in a
traditional sleepwear setting. Clearly, the consumer is getting
a conflicting message from the advertisement and the store sign and
they do not clearly demonstrate that the subject garment is clearly
loungewear.
You also submitted a sketch of the store plan which depicts
where the garment will be displayed and the buyer's listing showing
the item at issue described under the section for loungewear. This
evidence is also not dispositive of classification. Customs has
been consistent in holding that location of sale of an article is
not indicative of classification. Internal documents and
descriptions on invoices may be self-serving and should only be
considered in totality with other evidentiary information. See,
e.g, Headquarters Ruling Letter (HRL) 953001, dated January 21,
1993, HRL 950503, dated June 19, 1992, HRL 088904 dated February
19, 1992, HRL 087675, dated February 4, 1991,. HRL 087483, dated
December 12, 1990, HRL 087772, dated November 27, 1990, HRL 087478,
dated November 9, 1990, HRL 085672, dated October 29, 1989, and HRL
082624, dated March 22, 1989.
Thus, as the submitted evidence is not persuasive and the
physical characteristics suggest use of this garment as sleepwear,
this garment is classifiable in subheading 6108.32.0010, HTSUS.
HOLDING:
The garment at issue is classifiable in subheading
6108.32.0010, HTSUS, which provides for "[w]omen's or girls' slips,
petticoats, briefs, panties, nightdresses, pajamas, negligees,
bathrobes, dressing gowns and similar articles, knitted or
crocheted: [n]ightdresses and pajamas: [o]f man-made fibers:
[w]omen's." The rate of duty is, 17% ad valorem and the textile
category code is 651.
The designated textile and apparel categories 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 that the importer
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, the importer should contact the
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