Protest 5201-97-100174; loungewear; sleepwear; heading 6110; heading 6108

HQ 961116 November 20, 1998 CLA-2 RR:CR:TE 961116 RH CATEGORY: Classification TARIFF NO.: 6110.20.2075 Port Director Port of Miami U.S. Customs P.O. Box 025280 Miami, FL 33102-5280 ATTN.: Entry Control, Protest Desk RE: Protest 5201-97-100174; loungewear; sleepwear; heading 6110; heading 6108 Dear Sir: This is in reply to a letter from your port dated October 28, 1997, regarding the Application for Further Review of Protest (AFR) 5201-97-100174. The AFR was inadvertently sent to the Assistant Chief Counsel, International Trade Litigation, in New York, but was forwarded to our office and received on November 19, 1997. The law firm of Sandler, Travis & Rosenberg, P.A., timely filed the AFR on February 21, 1997, against the classification and liquidation of one entry of imported merchandise as outerwear. The law firm of Rode & Qualey now represents the protestant in this matter. They submitted a memorandum in support of the AFR filed by Sandler, Travis & Rosenberg, P.A., and state that the protestant abandons its claims on the protest relating to the classification of all garments except styles 7019 and 1271K. Review of the AFR is warranted under 19 CFR 174.24(b). - 2 - FACTS: The entry summary CF 7501 reflects that on October 8, 1996, Hampton Industries entered into the United States 599 dozen women’s long sleeved, thermal knit tops composed of 65 percent cotton and 35 percent polyester - styles 7019 and 1271K. Upon importation, the protestant entered these articles under subheading 6108.91.0030 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as sleepwear. Customs liquidated the entry on January 24, 1997, and classified the garments under subheading 6110.20.2075, HTSUSA, as outerwear. Counsel states that the garments are designed, manufactured and marketed as sleepwear/pajamas and are sold to sleepwear buyers. The items are sold separately so that a customer has the option of buying a different size or style top and bottom. Counsel also submits that the garments are suitable and comfortable for sleeping due to their loose fit and thermal knit fabric which, like flannel, is a fabric associated with pajamas and warmth. ISSUE: Whether the garments described above are classifiable as pajamas or sleepwear under heading 6108, HTSUSA, or under heading 6110, HTSUSA, as outerwear garments? LAW AND ANALYSIS: Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in their appropriate order. Heading 6108 encompasses “Women’s or girls’slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.” Heading 6110, HTSUSA, provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” Classification of garments as sleepwear is based upon use. Additional U.S. Rule of Interpretation 1(a), HTSUSA, 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. Customs considers factors discussed in several decisions by the Court of International Trade (CIT) in determining the classification of garments submitted to be sleepwear. 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 cited several lexicographic sources, among them Webster's Third - 3 - New International Dictionary which defined "nightclothes" as "garments to be worn to bed." The court determined that the garment at issue in that case 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 that the garments at issue in that case were manufactured, marketed and advertised as nightwear and were chiefly used as such. In determining whether a particular garment is to be used for sleepwear, the garment 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). Moreover, “most consumers tend to purchase and use a garment in the manner in which it is sold. Id. However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear, 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 documentation. Although consideration is given to the way in which merchandise is marketed and sold, 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, Headquarters Ruling Letter (HQ) 955341, dated May 12, 1994, and rulings cited therein; HQ 952105 of July 1992; HQ 085672 of October 29, 1989; HQ 955088 of December 14, 1993. The manner in which an article is sold and marketed is weighed in conjunction with other factors such as the physical characteristics of the garment. Customs also refers to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), for guidance in determining whether a garment has characteristics of sleepwear. At page twenty-four, the Guidelines state that "the term 'nightwear' means 'sleepwear' so that certain garments worn in bed in the daytime . . . are included." Garments that are not sleepwear may fall into various fashion categories besides sportswear, including "loungewear" or "leisure wear.” Customs has long held that loungewear includes a variety of loose, comfortable casual clothes that can be worn in a variety of settings. See, HQ 082624, dated March 22, 1989. Moreover, in a recent decision the CIT held that articles encompassed under heading 6107 (underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles) are characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing and dressing). International Home Textile, Inc. v. United States, CIT Slip. Op. 97-31, dated March 18, 1997. The court pointed out that loungewear, on the other hand, may be worn at informal social occasions in and around the home, and for other nonprivate activities such as - 4 - watching movies with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc. We note the parties stipulated that the garments in International Home Textile were considered “loungewear” and the issue was whether “loungewear” was classifiable as outerwear or as sleepwear. The court found that the garments in that case were primarily used for lounging and not for sleeping. In this case, however, the importer claims that the garments are sleepwear. Counsel argues that the garments at issue are designed, manufactured and marketed by the protestant as sleepwear/pajamas and are sold to sleepwear buyers. They further submit that the garments are suitable and comfortable for sleeping due to their loose fit and thermal knit fabric. In support of these claims, the protestant submitted letters from their client’s customers, i.e., Ross, Atkins and Kohl’s confirming that the garments will be marketed and sold as sleepwear. They also cited New York Ruling Letter (NY) 808133, dated April 10, 1995 and NY A81955, dated April 18, 1996, wherein customs classified thermal tops sold separately as mix and match coordinates in subheading 6108.91.0030, HTSUSA. In a recent decision issued to the protestant on similar merchandise, HQ 961036, dated April 27, 1998, a Customs National Import Specialist 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 the Fall and Winter J.C. Penny Catalog, garments advertised as cotton and polyester thermal knit loungewear consisting of a Henley style top trimmed with plaid flannel, long pants with no fly and jam shorts with plaid flannel trim on the waistband. 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. Pajamas were advertised separately. In an August 1996 Target advertisement, a Henley top or V-notch Tee, shorts and pants are sold as mix and match loungewear coordinates. Based on the foregoing and in looking at pictures of advertisements of the garments at issue, 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 as loungewear. HOLDING: The thermal knit tops, styles 7019 and 1271K, are classifiable under subheading 6110.20.2075, HTSUSA, which provides for: Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crotched: Of cotton: Other: Other: Other: Women’s or girls’.” They are dutiable at the general column one rate at 19 percent ad valorem, and the textile category is 339. Accordingly, the protest should be denied in full. - 5 - In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to the mailing of this decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, John Durant, Director Commercial Rulings Division