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).

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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]{.underline}, 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

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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]{.underline}, 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]{.underline}
at 552, citing [United States v. Bruce Duncan Co.]{.underline}, 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]{.underline}.
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]{.underline}, CIE
13/88 (1988), for guidance in determining whether a garment has
characteristics of sleepwear. At page twenty-four, the
[Guidelines]{.underline} 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]{.underline}, 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

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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]{.underline} 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]{.underline} 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]{.underline}.
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.

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In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
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 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