HQ 960906

JUNE 3, 1999

CLA‑2 RR:CR:TE 960906 SG

CATEGORY: Classification

TARIFF NO.: 6108.32.0010

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]{.underline}, 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]{.underline} which defined \"nightclothes\" as \"garments to
be worn to bed.\" In [Mast]{.underline}, 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]{.underline}, 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]{.underline}, 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,]{.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
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]{.underline}, 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,]{.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." 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