CLA-2 RR:TC:TE 958840 jb
Steven P. Kersner, Esq.
Arlene Arszulowicz
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219
RE: Revocation of NY 817100; classification of men's cotton knit
garments; cut and styling of multipurpose garments;
documentation and advertising supportive of classification as sleepwear; heading 6107, HTSUSA
Dear Mr. Kersner and Ms. Arszulowicz:
This is in reference to New York Ruling Letter (NY) 817100
issued to your client ISACO International, on December 29, 1995.
Customs has reexamined the decision and determined that the
decision was in error. NY 817100 classified the merchandise in
subheading 6103.42.1010, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as men's trousers, and subheading
6103.41.1050, HTSUSA, as men's shorts. Customs believes NY
817100 should be revoked to reflect the correct tariff
classification in subheading 6107.91.0030, HTSUSA, as men's
sleepwear. Samples were submitted to this office for
examination.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization), of the North American Free Trade Agreement
Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186
(1993), notice of the proposed revocation of NY 817100 was
published on June 12, 1996, in the CUSTOMS BULLETIN, Volume 30,
Number 24.
FACTS:
The merchandise at issue consists of two styles of 100
percent cotton finely knit men's garments to be imported from
Thailand. You state that both garments are made of soft
lightweight 100 percent cotton, 40/1 jersey, 100 grams/meterý.
The garments are either in a solid color or an all over print.
The prospective imports will additionally feature a jacquard
waistband with the words "Natural Issue".
The first style (no style number indicated), referred to as
a "sleep/lounge pant", is a loose-fitting pant with elasticized
leg openings and an exposed elasticized waist.
The second style (no style number indicated), referred to as
a "sleep/lounge short", is a loose fitting-short with an exposed
elasticized waist and a one button fly front opening which does
not break the waistband, and hemmed leg openings.
In NY 817100 the subject merchandise was classified
respectively in subheading 6103.42.1010, HTSUSA, as men's
trousers, and subheading 6103.41.1050, HTSUSA, as men's shorts.
You believe this classification is in error and that the
merchandise is properly classified as men's sleepwear in
subheading 6107.91.0030, HTSUSA.
It should be noted that two sets of samples were submitted.
One set of samples featured side seam pockets on both the shorts
and the pants. As the merchandise with the pockets did not
correspond to the actual description of the merchandise detailed
in your submission or with the merchandise described in NY
817100, that set of samples will be disregarded.
ISSUE:
Whether the subject garments are classifiable as men's knit
sleepwear of heading 6107, HTSUSA or as men's multipurpose
garments in heading 6103, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA) is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI will be applied, in the order of appearance.
Heading 6107, HTSUSA, provides for, among other things,
men's knitted or crocheted nightshirts, pajamas and similar
articles. In determining the classification of garments
submitted to be sleepwear, Customs considers the factors
discussed in two decisions of the Court of International Trade.
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
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.
The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories, CIE 13/88 (1988),
(hereinafter Guidelines), state that the term nightwear is
interpreted as meaning "sleepwear" so that certain garments worn
in bed in the daytime are included. The Guidelines further
indicate that besides pajamas, other nightwear includes various
articles worn for sleeping. Classification of garments as
sleepwear is based upon use. In this regard, Additional U.S.
Rule of Interpretation 1(a) 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.
In classification, the most persuasive evidence is the
garment itself. The court in Mast citing United States v. Bruce
Duncan Co., 50 CCPA 43, 46 C.A.D 817 (1963), pointed out that
"the merchandise itself may be strong evidence of use." In regard
to the specific merchandise submitted, it is the opinion of this
office that the pants and the shorts are "borderline" garments,
that is, they have features which could be attributed both to
outerwear or sleepwear. For example, while the garments at
issue are constructed from lightweight jersey knit fabric, the
fabric is not so sheer that the contours of the body would be
immodestly revealed should these garments be worn around the
home. Additionally physical characteristics such as the absence
of a fly and the presence of tunnel elastic leg bottoms on the
pants, and the secure one button closure and hemmed leg openings
on the shorts, suggest that the garments might be used as
multipurpose garments.
In St. Eve International, Inc. v. United States, the court
considered testimony that the garments were "designed,
manufactured and advertised" by plaintiff as sleepwear. You
state that the subject garments will be marketed as men's
sleepwear and sold in the men's sleepwear department of stores.
As such, you believe that the garments at issue are designed,
ordered and will be promoted as nightwear, thereby meeting the
parameters noted by the court. Despite ambiguities in the
styling features of the garments, the documentation submitted by
you with respect to these garments clearly substantiates your
claim that these garments will be advertised and sold as
sleepwear garments.
Among the documentation received by this office were
purchase orders, contracts, and letters from buyers confirming
that the subject pants and shorts are being purchased by their
department stores as men's sleepwear for display in the sleepwear
department.
The three advertising shots submitted for the pants were equally
convincing. In the first ad a man is shown, from the torso
down, sleeping on a bed with the caption reading, "Introducing
SleepPants. Bed time will never be the same. Slip into
SleepPants and slip into comfort. 100% cotton SleepPants. They
can't be topped." A second ad shows three smaller but similar
pictures, with the caption reading, "Sleeping beauties.
Introducing SleepPants. They're perfect for the way a man likes
to sleep. And they even look great when your eyes are open." In
the last ad a man is shown, from the torso down, sleeping on a
bed with a book and television remote control by his sides, with
the caption reading, "Introducing SleepPants. The bottoms that
can't be topped. Super comfortable, 100 percent cotton
SleepPants. Bed time will never be the same."
As such, in the case of this specific merchandise, when
considering the garments themselves and the information submitted
with regard to how this merchandise will be marketed and sold, it
is the belief of this office that classification as sleepwear is
proper.
HOLDING:
The submitted men's cotton knit pants and shorts are
properly classified in subheading 6107.91.0030, HTSUSA, which
provides for men's or boys' underpants, briefs, nightshirts,
pajamas, bathrobes, dressing gowns and similar articles, knitted
or crocheted: other: of cotton; sleepwear. The applicable rate
of duty is 9.2 percent ad valorem and the quota category is 351.
In accordance with section 625, this ruling will become
effective 60 days from its publication in the CUSTOMS BULLETIN.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
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 that your client check, close to the time of shipment,
the Status 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 the 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, your client 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
Tariff Classification Appeals
Division