CLA 2 RR:CR:TE 961190 SG
TARIFF NO: 6105.10.0010; 6103.42.1020; 6103.42.1050; 6109.10.0018
Patrick D. Gill, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017
RE: Classification of men’s garments; sleepwear vs. loungewear
Dear Mr. Gill:
This is in response to your letter of June 9, 1997, concerning the proper classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of various styles of men’s knit garments which are manufactured in Turkey and imported through the Port of Norfolk by your client, Hampton Industries. Samples were submitted and will be returned under separate cover.
FACTS:
Five samples were submitted along with a statement from an executive vice president of RonChereskinStudio regarding the nature of the license agreement. Also submitted was a page said to be from a catalogue used in marketing to the wholesale trade. A letter from a buyer at Yonkers Department Store, in Des Moines, Iowa stating that they are buying these garments for their sleepwear department is also enclosed. No other buyers of this merchandise have been identified and no retail advertising has been supplied.
The garments, which are the subject of this ruling, consist of five coordinated garments: three tops and two bottoms. The garments are composed either of 95 percent cotton, 5 percent polyester or 100 percent cotton jacquard knit fabric which measures more than ten stitches per linear centimeter counted in both the horizontal and vertical directions
Style 120340 is a man’s shirt. It has a rib knit Henley neckline, a partial frontal opening with a three button closure, a half-moon sweater patch at the inner rear neckline, hemmed long sleeves with contrasting rib knit cuffs, and a hemmed bottom with side slits.
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Style 120341 is a man’s shirt. It has a rib knit Henley neckline, a partial frontal opening with a zipper closure, a half-moon sweater patch at the inner rear neckline, hemmed short sleeves, and a hemmed bottom with side slits.
Style 120342 is a man’s sleeveless tank top. It has a shoulder straps which measure two inches in width, with oversize armholes, a low rounded front neckline, a rear neckline which reaches below the nape of the neck, a half-moon sweater patch at the inner rear neckline, contrasting rib knit fabric on the neckline and the armholes, and a hemmed bottom.
Style 120344 is a pair of men’s shorts. It has an exposed jacquard elasticized waistband, a covered placketed fly front opening with a three button closure which does not break the waistband, two side seam pockets, a hemmed bottom, and side vents.
Style 120343 is a pair of men’s pants. It has an exposed jacquard elasticized waistband, a placketed fly front opening with a three button closure which does not break the waistband, two side seam pockets, and rib knit cuffs at the ankles.
The three upper body garments have a sewn on woven fabric label located on the lower left front panel above the hem. The label reads: “Chereskin Sleepwear”. The pants and shorts have this label sewn on to the center rear inner waistband. Some of the garments also have a hangtag affixed by a plastic anchor which reads “Chereskin Sleepwear” and have the style number, bar code, and size on the same side of the hangtag.
You indicate that the garments are designed, manufactured, and marketed by Hampton as sleepwear garments; and their chief use is as sleepwear. You state that the garments are sold separately so that a customer can buy different sizes or styles of tops and bottoms. It is your position that both the loose fit of the garments and the jacquard knit fabric support classification as sleepwear garments. In addition, you contend that the garments imported together in shipments containing equal numbers of tops and bottoms are classifiable as pajamas in subheading 6207.21.0010, HTSUSA, as men’s pajamas. If imported separately, you state that the shorts, pants and matching tops are classifiable in subheading 6207.91.0030, HTSUSA, as other knitted sleepwear.
ISSUE:
Whether the subject merchandise is properly classifiable as sleepwear under Heading 6107, HTSUS, or as outerwear garments under headings 6103, HTSUS, 6109, HTSUS, and 6105, HTSUS, as appropriate?
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LAW AND ANALYSIS:
Classification of goods under the HTSUS 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.
Heading 6107, HTSUS, provides for, inter alia, men’s nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two piece garments worn for sleeping. One piece garments are not classifiable as pajamas. Sleep shorts and sleep pants used for sleeping fall into a residual provision within heading 6107, HTSUS, for similar articles.
If it is determined that the subject bottoms and tops are classifiable as outerwear or
loungewear, the applicable heading for the bottoms is heading 6103, HTSUS, which provides for,
inter alia, men’s trousers and shorts; and, for the tops, heading 6105, HTSUS, which provides for men’s shirts, or in the case of the tank top, heading 6109, HTSUS, which provides for tank tops.
In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases that addressed sleepwear. In Mast Industries,
Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 1986), the Court of
International Trade considered 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. Finally, 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.
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Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 97-31, March 18, 1997, which classified garments similar to those at issue here as loungewear in heading 6103, HTSUS. The court therein stated:
Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that
essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court
finds no basis in the exhibits, the witness testimony, or the loungewear’s construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn 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....
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, Inc. v. United States, 16 C.I.T. 407 (May 21, 1992). 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 HQ 955341 of May 12, 1994.
In the instant case, a physical examination of the bottoms at issue reveals several features which make them suitable for modesty purposes. Both the shorts and pants have side seam
pockets and substantial three button flies with covered plackets. The shorts have hemmed leg openings, while the pants have ribbed knit cuffs at the ankles. A substantial three button fly is not a useful feature on sleepwear, but on loungewear or a multipurpose garment it serves to ensure modesty. This, as well as the other features listed above are not indicative of sleepwear, but of multi purpose garments that may (and probably will) be principally worn for the type of non-private activities named in International Home Textiles, Inc. Finally, although the bottoms may be worn to bed for sleeping, it is our opinion that their principal use is for “home comfort” and lounging. In addition, these bottoms can easily make the transition from inside the home (in a private setting) to outside the home (and a more social environment). See for example HQ 958594 dated January 26, 1996, in which we held that a placketed fly opening with a substantial
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one button closure on similar bottoms was indicative of multi-purpose garments which will be worn for purposes other than sleeping.
Having examined the tops are issue, we find nothing in their construction, fabric or styling to indicate that they are primarily designed for wear to bed. The fabrics and styling of the tops are suggestive of leisure wear or loungewear. Insofar as the top, style 120342, is concerned, we
note that it has a substantial metal zipper with a metal zipper pull which would be an uncomfortable feature on a garment worn while sleeping.
In addition, all the samples submitted are made of fabric heavy enough for outdoor use even in cool weather.
When considered with other information presented, Customs does not find the fact that Hampton is the sole licensee for “Chereskin Sleepwear” and under the agreement, Hampton is not permitted to use the mark on any outerwear or sportswear garments of particular importance. Nor do we find of particular significance the fact that the garments at issue here are sold to underwear and sleepwear departments.
Some of the garments have a hang tag stating “Chereskin Sleepwear”, while all have a label sewn on the exterior surface of the garments which reads “Chereskin Sleepwear”. These tags and labels are factors to be considered in determining how these garments are marketed and likely to be used by purchasers, although it is not determinative in and of itself. We note that the importer has not provided Customs with any advertising to the public showing these garments as sleepwear, nor are the garments identified anywhere on the invoices as sleepwear. The garments, despite the labels, are more likely to give the ultimate consumer the idea that they are items of general apparel, rather than sleepwear.
In our view, these garments are clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are presented as multi purpose garments and, in fact, nothing provided suggests the garments are designed or intended for wear while sleeping. Thus, Customs does not agree that these garments are presented to consumers as sleepwear garments; they are held out as casual loungewear for all day wear if desired.
The Customs National Import Specialist for this merchandise provided us with numerous advertising materials which demonstrate that the trend today for the type of garments in question is for mix and match loungewear as shown by the following sampling of the articles we received. For example, in a number of J.C. Penny Catalogs, garments are advertised as cotton knit loungewear consisting of a Henley style top trimmed with plaid flannel, long pants with one fly and jam shorts with elastic waistband and one button fly. The garments are sold and priced separately to be used as mix and match loungewear coordinates. A September 1996 Kohl’s advertisement featured a Henley style top and a pair of pants with plaid trim on the shirt placket and waistband advertised as loungewear. The advertising copy reads “Ideal casual wear to get
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comfy in!” Pajamas were advertised separately. In an August 1996 Target advertisement, a Henley top or V notch Tee, shorts and pants are advertised as mix and match loungewear coordinates. A summer 1996 Marshall Field advertisement shows college logo loungewear, including a thermal knit boxer with exposed elastic waistband and thermal knit Henley style shirt, sold as loungewear separates.
An article on the underwear/loungewear trade in the Daily News Record, of October 14, 1994, noted the trend towards underwear/loungewear as activewear and gymwear. The article states that:
Manufacturers that are adopting a sportswear-driven approach to underwear and loungewear are expected to ring up big business for spring ‘95, as versatile briefs, boxers, T-shirts, lounge tops and longer, looser lounge pants fuel the furnishings field...underwear and loungewear can double as activewear/gymwear...Knit bottoms are now being worn externally...because they offer much more versatility and have a dual purpose...Loungewear is not just homewear anymore.
In discussing how loungewear is promoted and displayed at the retail level, the article continued:
The loungewear area is made up of coordinated separates...The whole concept is towards coordinated separates that are...sold as separates to give the consumer the option to mix
and match. Lounge pieces and coordinated separates have a much more diverse usage factor.
In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade stated: “The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function.”
Based on our examination of the garments supplied, we find that they are loungewear, i.e., loose, casual clothes that are worn in the home for comfort. Their fabric, construction and design are suitable for the type of nonprivate activities named in International Home Textile, Inc. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for “home comfort” and lounging.
Taking into consideration all of the information before us, especially the garments themselves and the marketing and advertising, Customs believes these garments will not be principally used as sleepwear. They are multipurpose garments and are properly classified as loungewear garments, not as sleepwear.
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HOLDING:
The knit pants, style 120343, with substantial three button placketed fly opening, side seam pockets, and ribbed leg bottoms are classified in subheading 6103.42.1020, HTSUSA, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Trousers, breeches, and shorts: Trousers and breeches: Men’s.” The general column one rate of duty is 16.6 percent ad valorem and the textile quota category is 347.
The shorts, style 120344, are classified as men’s knit cotton shorts in subheading 6103.42.1050, HTSUSA, which provides for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of cotton: Trousers, breeches and shorts: Shorts: Men’s.” The general column one rate of duty is 16.6 percent ad valorem and the textile quota category is 347.
The Henley shirts with both button plackets, style 120340, and zippered neck opening, style 120341, are classified under subheading 6105.10.0010, HTSUSA, which provides for “Men’s or boys’ shirts, knitted or crocheted: Of cotton: Men’s.” The general column one duty rate is 20.4 percent ad valorem. The textile quota category is 338.
The tank top, style 123042, is classified under subheading 6109.10.0018, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton: Other: Other.” The general column one duty rate is 18.8 percent ad valorem. The textile quota category is 338
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.
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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