# HQ 960890

November 17, 1999

CLA‑2 RR:CR:TE 960890 SG

CATEGORY: Classification

TARIFF NO: 6105.10.0010; 6110.20.2065

Port Director

200 East Bay Street

Charleston, South Carolina 29401

RE: Protest No 1601-97-100188; Classification of men's garments;
sleepwear vs. loungewear

Dear Sir:

This is in response to the request for further review of Protest No.
1601-97-100188 timely filed on August 6, 1997, by Host Apparel, Inc.
concerning the proper classification of various styles of men's knit
garments which were imported from Turkey through the Port of Charleston.
The protest involves knit shirts which were classified when entered on
January 31, 1997, as loungewear in subheading 6105.10.0010, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). The importer
has protested the classification and claims the proper classification of
these garments is as sleepwear under subheading 6107.91.0030, HTSUSA or
alternatively as other garments in subheading 6114.20.00, HTSUSA.

FACTS:

Samples were submitted along with style sheets. Also submitted was a
summary sheet which Customs requested in an effort to clarify the style
numbers of the protested garments. We have used this summary sheet to
identify the styles protested on each entry. Since the last three digits
of the style number refer solely to the color of the garment, we have
omitted these three digits from the style numbers used herein.

The styles involved in the above protest are listed below.

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**SHIRTS:**

\*Style F125 (same as Style F468) is a men\'s shirt constructed from 67
percent cotton, 33 percent polyester double knit fabric which measures
more than 10 stitches per linear centimeter counted in both the
horizontal and vertical directions. The garment has a Henley neckline; a
three button, partial front opening; short sleeves with rib knit cuffs;
and a hemmed bottom with side slits.

\* Style F140 is a men\'s pullover garment constructed from 100 percent
cotton, double knit fabric which measures more than 9 stitches per 2
centimeters counted in the horizontal direction. The garment has a V-
neckline with a rib knit spread collar; short sleeves with rib knit
cuffs; and a hemmed bottom with side slits.

\* Style F294 (same as Style F468) is a men\'s shirt constructed from
100 percent cotton, double knit fabric which measures more than 10
stitches per linear centimeter counted in both the horizontal and
vertical directions. The garment has a Henley neckline; a three button,
partial front opening; short sleeves with rib knit cuffs; and a hemmed
bottom with side slits.

\*Style F468 is a men\'s shirt constructed from 67 percent cotton, 33
percent polyester double knit fabric which measures more than 10
stitches per linear centimeter counted in both the horizontal and
vertical directions. The garment has a Henley neckline; a three button,
partial front opening; short sleeves with rib knit cuffs; and a hemmed
bottom with side slits.

The shirts were classified in subheading 6105.10.0010, HTSUSA, dutiable
at the rate of 20.6 percent ad valorem and subject to textile category
338

The importer is of the opinion that the merchandise should be properly
classified in subheading 6107.91.0030, HTSUSA, with duty at the general
column one rate of 9.2 percent ad valorem and subject to textile
category 351. In the alternative, classification is sought in subheading
6114.20.00, HTSUSA, with duty at the column one rate of 11.3 percent ad
valorem.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear
under Heading 6107, HTSUS, or as outerwear garments under heading 6105,
6110, or 6114, HTSUS, as appropriate?

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

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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 tops used for sleeping, which are not classifiable
as nightshirts fall into a residual provision within heading 6107,
HTSUS, for similar articles. Heading 6114, HTSUS, where classification
is sought as an alternative, provides for other garments, knitted or
crocheted.

If it is determined that the subject tops are classifiable as outerwear
or loungewear, the applicable heading for Styles F125, F468, and F294 is
heading 6105, HTSUS, which provides for men's shirts, and the applicable
heading for Style F140 is heading 6110, HTSUS, which provides for, among
other things, men's pullovers.

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,]{.underline}

[Inc. v. United States]{.underline}, 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]{.underline} which
defined "nightclothes" as "garments to be worn to bed." In
[Mast]{.underline}, 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]{.underline}, 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]{.underline}, 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.

Furthermore, we bring your attention to [International Home Textile,
Inc]{.underline}., Slip Op. 97-31, March 18, 1997, which classified
garments similar to those at issue here as loungewear in heading 6105,
HTSUS. The court therein stated:

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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,]{.underline}
\"the merchandise itself may be strong

evidence of use.\" [Mast]{.underline} at 552, citing [United States v.
Bruce Duncan Co.]{.underline}, 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,]{.underline} 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.

Counsel indicates that the importer, Host Apparel, Inc., is a
sleepwear/underwear company and that Host's garments are sold throughout
the country to underwear and sleepwear departments, and not to
sportswear departments or specialty shops. Counsel argues the garments
are sold and used as sleepwear and loungewear, i.e., for use in the
privacy of one's home. It is Host's position that the garments are of a
thin, cotton, clinging, jersey fabric and are not outerwear.

Customs does not find the fact that the garments at issue here are sold
by Host Apparel to underwear and sleepwear departments of particular
significance. What we do find of importance is the garments themselves
and the manner in which the garments will be presented to the public.

Having examined the tops at issue, we find nothing in their
construction, fabric or styling to indicate that they are designed
primarily for wear to bed. In fact, the fabrics and styling are
suggestive of leisure wear or loungewear.

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Other Headquarters Rulings have consistently determined that where a
garment does not display features recognizable as \"sleepwear\" those
garments will not be given a sleepwear classification. In HRL 951032,
dated May 7, 1992, a National Import Specialist examining a similar
garment imported by your client stated:

\...there is nothing about the styling, fabric, cut, or construction of
these garments which indicate that they were designed primarily for wear
to bed. Rather, the garments are designed and constructed in the manner
and style of knit sportswear. We believe that these garments are part of
the relatively new men\'s loungewear trade where the garments are
designed for comfortable wear in and around the home. Garments of this
type are multi‑purpose garments rather than garments designed primarily
to be worn for sleeping.

Although the garments at issue here may be worn to bed for sleeping, it
is our opinion that their principal use is for "home comfort" and
lounging. These tops can easily make the transition from inside the home
(in a private setting) to outside the home (and a more social
environment). In [Hampco Apparel, Inc. v. United States,]{.underline} 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."

We also note the manufacturers invoices identify the garments, other
than Style F140, as Henley shirts. In addition, all the samples
submitted are made of fabric heavy enough for outdoor use even in cool
weather. The importer has provided no advertising showing these garments
as sleepwear, nor are the garments identified anywhere on the invoices
as sleepwear.

The Customs National Import Specialist for this merchandise has 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 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. 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 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, advertised as loungewear
separates.

As the court noted in [Mast]{.underline}, at 551, \"most consumers
purchase and use a garment in the manner in which it is marketed.\" In
our view, these garments are of the type which are clearly

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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 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.

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.

An article supplied by the NIS from the *Daily News Record*, dated
August 28, 1995, on loungewear reads:

Loungewear is changing the way men dress at home, after work and on the
weekends. Here SLOUCHERS by HAMPTON INDUSTRIES' version of what to wear
after‑hours ‑ a natural and navy striped cotton pique cross‑tie lounge
shirt and natural cotton pique lounge shorts.

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]{.underline}. Finally, although the garments may be worn to bed for
sleeping, in our opinion their principal use is for "home comfort" and
lounging. In addition, all the samples submitted are made of fabric
heavy enough for outdoor use. It is our view that the garments are more
likely to give the ultimate consumer the idea that they are items of
general apparel, rather than sleepwear.

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Taking into consideration all of the information before us, especially
the garments themselves and the marketing and advertising of similar
garments, Customs believes these garments are properly classified as
loungewear garments, not as sleepwear.

We note that although protestant seeks an alternative classification for
the garments in subheading 6114.20.00, HTSUSA, they have provided no
information, reason, or justification for that claim.

GRI 3(a) states in part that when, by application of rule 2(b) or for
any other reason, goods are, prima facie, classifiable under two or more
headings, the heading which provides the most specific description shall
be preferred to headings providing a more general description.
Classification turns on which heading is more definite or specific. The
more specific heading will prevail over a more general heading. Courts
have applied the "more difficult to satisfy" test to determine the more
specific of competing tariff provisions. See [Mitsui Petrochemicals
(America), Ltd. v. U.S.]{.underline}, Slip Op. 97‑108 (CIT 1997), and
[Orlando Food Corp. v. US]{.underline}, Slip Op. 97‑1335 (Fed. Cir.
1998), citing [United States v. Siemens Am., Inc]{.underline}., 68 CCPA
62, 68, 653 F.2d 471, 477 (1981).

In this case, headings 6105 and 6110 contain eo nomine provisions
specifically describing the types of garments classified thereunder.
Heading 6114, on the other hand, is a "basket" provision providing for
"other garments, knitted or crocheted." Headings 6105 and 6110 clearly
provide more specific descriptions for the shirts at issue here than
heading 6114, HTSUS.

HOLDING:

The Henley shirts with button plackets (Styles F125, F294 and F468) are
classified under subheading 6105.10.0010, HTSUSA, which provides for
"Men's or boys' shirts, knitted or crocheted: Of cotton: Men's." The
applicable 1997 general column one rate of duty is 20.6 percent ad
valorem. The V-neck garment (Style F140) is classified under subheading
6110.20.2065, HTSUSA, which provides for "Sweaters, pullovers,
sweatshirts, waistcoats (vests) and similar articles, knitted or
crocheted: Of cotton: Other: Other: Other: Men's or boys." The
applicable 1997 general column one rate of duty is 20.6 percent ad
valorem. All of the garments are assigned textile quota category 338.

The protest under consideration should be DENIED.

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

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reliquidation of the entry 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 this decision available to Customs personnel, 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