CLA 2 RR:CR:TE 960906 SG
Port Director
55 Erieview Plaza
Cleveland, Ohio 44114
RE: Protest No. 4103-97-100145; Classification of women’s garments; sleepwear vs. outerwear
Dear Sir:
This is in response to the request for further review of protest 4103-97-100145 filed by Eddie Bauer Inc. on April 14, 1997. New York Ruling (NY) A85203 dated August 29, 1996, classified a women’s two piece garment, style 045-4834, et al., in headings 6106 and 6104, Harmonized Tariff Schedules of the United States (HTSUS) as shirts and trousers. The goods were entered in accordance with NY A85203 as shirts and trousers. This classification is being protested.
FACTS:
The subject merchandise is comprised of two pieces-a top and pants, and is constructed from 55% polyester and 45% cotton fleece fabric. The item was imported under style number 045-4834 (regular), 045-4835 (petite), and 045-4836 (tall). The fabric contains more than 10 stitches per centimeter measured in each direction. The top features a full front five button opening with right over left closure (women’s), a collar, a left chest pocket, long hemmed sleeves, and a straight, hemmed bottom. The pull-on pants feature a one and one half inch elasticized waistband with drawstring, and a hemmed bottom. The pants do not have a fly.
NY ruling A85203 dated August 29, 1996, determined that the appearance of the garments, which was not contradicted by the evidence provided concerning the merchandising of the garments, did not render the garments solely usable for sleepwear. The top was classified in heading 6106, HTSUS under the provision for women’s knit blouses and shirts; the bottom was classified in heading 6104, HTSUS, under the provision for women’s knit trousers.
2
The importer contends that Customs classification of the garments in heading 6106 and 6104, HTSUS, as outwear is erroneous. The proper classification should be in heading 6108, HTSUS, as pajamas. The importer has now submitted a copy of a 1996 Eddie Bauer catalogue which advertises these articles. This catalogue was not available at the time the classification ruling was requested.
ISSUE:
Whether the subject merchandise is properly classifiable as pajamas under heading 6108, HTSUS, or as outerwear garments under heading 6106, HTSUS, and heading 6104, HTSUS?
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 designed, manufactured, and marketed 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 designed, manufactured, and advertised as sleepwear and were chiefly used as sleepwear.
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."
3
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 outwear. See HQ 955341 of May 12, 1994.
The garments in question are of fleece on the inside which some may find uncomfortably hot for sleeping. However, the design, although somewhat ambiguous, is suggestive of pajamas. The garments are advertised for sale in the intimate apparel section of the Eddie Bauer catalogue and the description leaves the consumer with no doubt that these garments are intended to be used for sleepwear. We are further advised that these garments are sold only in the Eddie Bauer catalogue, and the catalogue indicates these garments are pajamas. In our view, these garments are clearly being presented as sleepwear garments for the primary purpose of wearing to bed for sleeping and, in fact, nothing else in the advertising copy suggests the garments are designed or intended for wear other than while sleeping. In Mast, at 551, the court pointed out that the expert witnesses in the case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." In the instant case the advertising and marketing of the garments in question is as pajamas or garments for sleeping. Thus, Customs agrees that these garments are presented to consumers as sleepwear.
Although the subject garments could be used for social activity inside the home, it is our view that it is not likely that they would be used for informal social occasions because the garments design as well as the soft, comfortable feel of the fabric, is suggestive of its use as pajamas. It is however, our view that this use would be a fugitive use. 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.” In this case, because the submitted samples are capable of being used to lounge around the home does not change what is their principal use and character as sleepwear. Thus, it is our determination that these garments have the essential character of privateness, i.e. of being used for the private activity of sleeping.
4
We note that at the time the New York ruling on these garments was issued, information regarding the advertising and marketing was not available to Customs to consider in making its classification determination based on the information available at the time. The garment’s appearance was ambiguous. Therefore based on the information which was in fact available at the time, the New York decision was correct. However, taking into consideration all of the additional information now before us, Customs believes these garments are properly classified as sleepwear, not as outerwear. The New York decision will not be revoked or modified. This ruling is being issued on the same merchandise based on new facts, and will apply to the merchandise at issue here and to future shipments only. Present both rulings to the port for all future shipments.
Heading 6108, HTSUS, provides for, inter alia, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two piece garments worn for sleeping. Accordingly, we find that these garments are properly classified in heading 6108, HTSUS.
HOLDING:
Following a thorough review of the new information submitted, the original information, as well as an analysis of the law and applicable precedents, we have determined that for the reasons stated in the Law and Analysis portion of this ruling, the protest under consideration is granted. The instant merchandise is properly 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", in subheading 6108.32.0010, HTSUS, and are dutiable under the general column one rate of 16.8 percent ad valorem for goods which arrived in 1996 and 1997. The textile category for this provision is 651.
The protest should be ALLOWED. In accordance with Section 3A (11) (b) of Customs Directive 0993550 065, 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 mailing the 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