CLA-2 RR:CR:TE 959843 ASM
Tariff No.: 6108.32.0010
Ms. Nancy Fife
Manager, Import Costs
Sears Roebuck and Co.
3333 Beverly Rd., BC 217A
Hoffman Estates, Illinois 60179
RE: Revocation of PD A83049 and NY A84529 Concerning Women's
Knit Garments; Nightwear vs. Outerwear
Dear Area Director:
This letter concerns the revocation of Port Director Ruling
(PD) A83049, May 14, 1996, and New York Ruling (NY) A84529, July
5, 1996, concerning the classification women's pullovers and
dresses.
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. 103-182, 107 Stat. 2057, 2186 (1993),
notice of the proposed revocation of PD A83049 and NY A84529 was
published on March 25, 1998, in the Customs Bulletin, Volume 32,
Number 12.
FACTS:
Style 74998 is a woman's pullover of 65 percent polyester
and 35 percent cotton knit fabric, fully napped inside. The
garment is 36 inches long and has a ribbed crewneck, long
sleeves with ribbed cuffs, shirttail bottom, as well as
appliques on the chest which depict a cap, owl, and snowflake
along with the words "a cold winter's night." In Ruling PD
A83049, Customs determined that the item was properly
classifiable under subheading 6110.30.3055, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which is the
provision for sweaters, pullovers, sweatshirts, waistcoats
(vests) and similar articles, knitted or crocheted, of man-made
fibers, other, women's or girls.
Style LT-1044 is also designed as a woman's pullover and is
constructed of 65 percent polyester and 35 percent cotton knit
fabric, fully napped inside. The length is somewhat longer at 48
inches; however, in all other respects, it is identical to Style
74998, described above. In NY A84529, Customs classified the
item under subheading 6104.43.2010, HTSUSA, the provision for
women's dresses, knit, of synthetic fibers, other.
It is Sears position that both items should be classified as
women's knit nightdresses, of man-made fibers under subheading,
6108.31.0010, HTSUSA. Sears contends that the nightshirts would
be designed, displayed, and sold in the nightwear/robe/loungewear
area of the intimate apparel section of Sears stores. Sears also
states that similar articles are advertised and described as
"novelty loungers and sleepshirts" in their promotional
literature.
ISSUE:
Whether the proper tariff classification under the HTSUSA
for these women's garments is
under the provisions for women's knit pullovers and dresses or
the provision for women's knit nightdresses.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
The Explanatory Notes to the HTSUSA (ENs), although not
dispositive nor legally binding, provide a commentary on the
scope of each heading of the HTSUSA and are generally indicative
of the proper interpretation of these headings. See T.D. 89-80,
54 Fed. Reg. 35127, 35128, (August 23, 1989).
In order to determine whether or not the garments are
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 dealt with the
classification of a garment claimed to be sleepwear and cited
Webster's Third New International Dictionary which defined
"nightclothes" as "garments to be worn to bed." In Mast, the
court ruled that the garments at issue were manufactured,
marketed and advertised as nightwear and were chiefly used as
nightwear. Similarly, in St. Eve International, Inc. V. United
States, 11 CIT 224 (1987), the court ruled that the garments at
issue were manufactured, marketed and advertised as nightwear and
were chiefly used as nightwear.
As noted in Customs Headquarter's Ruling (HQ) 957004,
November 23, 1994, Customs will typically look to the garment
itself as the crucial factor in classifying the merchandise.
However, when presented with a garment which is somewhat
ambiguous and not clearly recognizable as sleepwear, 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. These factors are considered in
totality and no single factor is determinative of classification,
as each of these factors viewed alone may be flawed. Such was
the case in Regaliti, Inc. V. United States, 16 CIT 407 (1992),
wherein the court upheld Customs classification of the goods as
"pants" and viewed plaintiff's characterization of the items as
"tights" as self-serving stating that "To avoid pants quota
limitations plaintiff must refer to the items as tights'."
In the recent case of International Home Textile, Inc. V.
United States, Slip Op. 97-31, March 18, 1997, the Court of
International Trade addressed the issue of whether certain men's
garments were properly classified under the provision for cotton
pants, shorts and tops or as sleepwear under the HTSUSA. The
court held that in order to be classified as sleepwear, certain
loungewear items must share that essential character of being for
a "private activity", e.g., sleeping. The court also stated that
garments classified as sleepwear would be inappropriate for use
at "... informal social occasions in and around the home, and for
other individual, non-private activities in and around the house
e.g., watching movies at home with guests, barbequing at a
backyard gathering, doing outside home and yard maintenance work,
washing the car, walking the dog, and the like."
The garments in question are of a rather heavy sweatshirt
type fabric with fleece on the inside which some may find
uncomfortably hot for sleeping. However, the design is that of a
large over-sized nightshirt with a shirt-tail effect at the hem
and ample stretch and roominess in the collar, shoulder, sleeves,
and body of the garment. It is our understanding that the
garments are not intended to be paired with matching or
coordinating leggings/pants/shorts. Although, the subject
garments could be used for private activity inside the home, it
is not likely that they would be used for informal social
occasions in and around the house because the garment design
strongly suggests it's use as a nightshirt. In addition, Sears
has submitted advertising information which suggests that the
garments in question are to be promoted as sleepwear. According
to Sears, these items will be displayed and sold in the
nightwear/robe/loungewear area of the Intimate Apparel section of
Sears stores. Thus, it is our determination that these garments
have the essential character of being for the private activity of
sleeping.
HOLDING:
The womens' garments identified as Style 74998 and LT-1044,
are classifiable under the provision 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; Women's", subheading 6108.32.0010, HTSUSA, and are
dutiable under the general column one rate at 16.6 percent ad
valorem. The textile category for this provision is 651.
The importer should be advised that due to the changeable
nature of the statistical annotation (the ninth and tenth digits
of the tariff number) and the restraint (quota/visa) categories,
he or she should contact the local Customs office prior to
importation of this merchandise to determine the current status
of any import restraints or requirements.
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 issuance
of the U.S. Customs Service, which is updated weekly and is
available at your local Customs office.
PD A83049 dated May 14, 1996, and NY A84529 dated July 5,
1996, are hereby revoked. In accordance with 19 U.S.C.
1625(c)(1), this ruling will become effective 60 days after its
publication in the Customs Bulletin. Publication of rulings or
decisions pursuant to 19 U.S.C. 1625(c)(1) 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)).
Sincerely,
John Durant, Director
Commercial Rulings Division