HQ 958254

October 2, 1995

CLA-2 R:C:T 958254 CMR

CATEGORY: Classification

TARIFF NO.: 6110.20.2065, 6103.42.1020,6103.42.1050

Mr. James Martino

Russell-Newman Inc.

600 N. Loop 288

Denton, Texas 76202

RE: Classification of certain men\'s knit garments;

Reconsideration of New York Ruling Letter (NYRL) 807639 and

NYRLs 807640 and 807641; sleepwear v. loungewear/outerwear;

submission of new samples

Dear Mr. Martino:

This is in response to your submission of May 26, 1995,

requesting Customs reconsider the classification decisions in

NYRLs 807639, 807640 and 807641, all of which were issued on

April 6, 1995. Samples were submitted with your request for

reconsideration. However, these samples differ from the original

samples submitted and ruled upon in the New York ruling letters

at issue. This office will reconsider the subject rulings in

regard to the initially submitted samples. We will classify the

new samples submitted with this request as separate and apart

from the reconsideration issue.

FACTS:

NYRLs 807639, 807640 and 807641 classified the following

garments, styles 75002T and 75012T (NYRL 807639), style 950027

(NYRL 807640), and style 85002T (NYRL 807641) as men\'s pullovers,

shorts, and pants, respectively. You have requested

reconsideration of these decisions claiming the garments are

properly classifiable as men\'s sleepwear garments.

All of the garments are constructed of 100 percent cotton

jersey knit fabric containing more than nine stitches per two

centimeters counted in the horizontal direction. The fabric of

each garment is fairly substantial, medium weight, knit fabric.

The garments will be imported from Peru.

Style 75002T is a men\'s size large, pullover with a rib knit

crew neckline, long sleeves with rib knit cuffs, and a straight

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hemmed bottom with three-inch side slits. The garment has a

woven triangle-shaped overlay at the center front neckline and a

triangular knit fabric sweat patch sewn to the inner back

neckline. A strip of knit fabric measuring four inches by seven-

eights of an inch, and with a woven \"Tommy Hilfiger\" label

attached, is cross stitched to the center rear neckline below the

nape of the neck.

Style 75012T is men\'s pullover with short hemmed sleeves, a

rib knit crew neckline, and a straight hemmed bottom with three-

inch side slits. The garment has a woven triangle-shaped insert

at the center front neckline and a triangular knit fabric sweat

patch sewn to the inner back neckline. A hanger loop of knit

fabric measuring four inches by seven-eights of an inch, and with

a woven \"Tommy Hilfiger\" label attached, is cross stitched to the

center rear neckline below the nape of the neck.

Style 950027 is a pair of men\'s knit shorts. The shorts

have an exposed, jacquard elastic waistband which reads, \"Tommy

Hilfiger\". The shorts also have two side seam pockets, a rear

pieced, patch pocket with a self fabric edge, hemmed leg

openings, and no fly. The jacquard elastic waistband has an

almost four-inch piece of plain wide elastic inserted at the rear

of the waistband.

Style 85002T is a pair of men\'s, size large, knit pants.

The pants feature an exposed, jacquard elastic waistband which

reads, \"Tommy Hilfiger\". The pants also feature two side seam

pockets, a rear patch pocket, rib knit cuffs at the ankles, and

no fly.

Styles 75002T and 75012T were classified in NYRL 807639 as

men\'s cotton knit pullovers in subheading 6110.20.2065,

Harmonized Tariff Schedule of the United States Annotated

(HTSUSA). Style 950027 was classified in NYRL 807640 as a pair

of men\'s cotton knit shorts in subheading 6103.42.1050, HTSUSA.

Style 85002T was classified in NYRL 807641 as a pair of men\'s

cotton knit pants in subheading 6103.42.1020, HTSUSA.

The new samples submitted with your request are identified

by the same style numbers as the original samples. Therefore, in

this ruling letter we will distinguish the new samples by adding

the following designation, (NS), which stands for, quite simply,

\"new sample\", after the style number.

The new samples differ in that all are made of a lighter

weight knit fabric from that used in the original samples. The

pants and shorts no longer have back patch pockets. A logo has

been embroidered onto the shorts and the pants; in each case,

appearing on the left in the hip area. The pants now have hemmed

leg bottoms as opposed to the previous rib knit cuffs at the

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ankles. The shorts have one and one-half inch side slits on the

legs. Woven fabric labels have been sewn to the front center

waistband of the pants and shorts.

Style 75002T(NS) has a triangular knit fabric insert which

is the same fabric as the garment, instead of the woven overlay

in the original style 75002T. In addition, the rib knit cuffs at

the end of the long sleeves are now of a lighter weight, with

less elasticity and wider width than in the original sample.

Style 75012T(NS) has a triangular knit fabric insert which is the

same fabric as the garment, instead of the woven insert in the

original style 75012T. Both of the new samples feature sewn on

labels stitched to the center rear neckline below the nape of the

neck. These labels can be used as hanger loops and replace the

four inch by seven-eights of an inch knit fabric, with a woven

\"Tommy Hilfiger\" label attached, which appeared on the earlier

versions. Each of the new samples also features a screen-printed

logo at the chest.

In seeking reconsideration of the NYRLs at issue, you submit

these garments are properly classifiable as men\'s sleepwear for

the following reasons:

1\. Every garment you sell will have a hangtag stating \"Tommy

Hilfiger Sleepwear\".

2\. Most of your orders have been sold to large department

stores and purchased by the men\'s robe and sleepwear

buyers for sale in the men\'s furnishings department.

3\. Your licensing contract with Tommy Hilfiger Inc.

precludes you from selling sportswear. Your merchandise

will not be sold or displayed in the \"Tommy Hilfiger

Shop\" with sportswear. You argue that \"traditionally,

men do not shop the men\'s sleepwear department for

sportswear or outerwear.\"

4\. You have changed the original samples to eliminate the

back pocket on the pajama pants.

5\. Customs has recently issued a ruling on sleep bottoms

which had side seam pockets. You cite Headquarters

Ruling Letter 957134.

6\. Your company is a sleepwear and robe company. You state

that \"in the case of Tommy Hilfiger products, all of them

are represented as and purchased with the full intent of

being sold in men\'s robe and sleepwear departments.\"

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ISSUE:

Are the subject garments classifiable as men\'s knit

sleepwear of heading 6107, HTSUSA, as claimed?

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 and, provided

such headings or notes do not otherwise require, according to

\[the remaining GRIs taken in order\].\"

Heading 6107, HTSUSA, provides for, among other things,

men\'s knitted or crocheted nightshirts, pajamas and similar

articles. The Explanatory Notes (EN) for the Harmonized

Commodity Description and Coding System, the official

interpretation of the Harmonized System at the international

level, do not provide much additional information than that

provided by the language of the heading. The EN for heading 6207

provides, in part, the following:

The heading also includes nightshirts, pyjamas, bathrobes

(including beachrobes), dressing gowns and similar articles

for men or boys (garments usually worn indoors).

In determining the classification of garments submitted to

be sleepwear, Customs considers the factors discussed in two

decisions of the Court of International Trade which are often

cited when discussing 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 dealt with the

classification of a garment claimed to be sleepwear. The court

cited several lexicographic sources, among them Webster\'s Third

New International Dictionary which defined \"nightclothes\" as

\"garments to be worn to bed.\" In Mast, 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, 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.

The Guidelines for the Reporting of Imported Products in

Various Textile and Apparel Categories, CIE 13/88 (1988),

(hereinafter Guidelines), which offer guidance to the trade

community and Customs personnel as to various characteristics of

garments, state that \"the term \'nightwear\' is interpreted as

meaning \'sleepwear\' so that certain garments worn in bed in the

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daytime, . . ., are included.\" The Guidelines indicate that

besides pajamas, other nightwear includes various articles worn

for sleeping.

Classification of garments as sleepwear is classification

based upon use. In this regard, Additional U.S. Rule of

Interpretation 1(a) 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.

In support of your claim that these garments are sleepwear

and should be so classified, you emphasize that these garments

will be purchased by the men\'s robe and sleepwear buyers of

stores and sold in the men\'s robe and sleepwear departments.

Customs has stated on numerous occasions that the location within

a store in which a garment is sold is not determinative of its

classification. Although the environment of sale is a factor

which may be considered in determining a garment\'s identity,

Customs recognizes that sleepwear/loungewear departments often

sell a variety of merchandise, for example, garments known as

leisure wear (i.e., loose, comfortable clothing worn in or

outside the home in a casual environment). This is especially

true in women\'s fashions and, in our view, becoming increasingly

true in men\'s fashions. See, HRL 955341 of May 12, 1994 and

rulings cited therein; HRL 952105 of July 1992; HRL 085672 of

October 29, 1989; HRL 951032 of May 7, 1992; and HRL 955088 of

December 14, 1993.

You indicate your licensing agreement with Tommy Hilfiger

Inc. precludes you from selling sportswear. The classification

issue at hand is not whether these garments are \"sportswear\" in

the trade, but whether they are sleepwear. Denial of

classification as sleepwear does not mean Customs views the

garments as \"sportswear\", but simply that we do not view the

garments to be principally used for wearing to bed for sleeping,

i.e., as sleepwear. While licensing agreements may be evidence

of intended markets or use, they are not determinative and, as in

this case, may not be particularly helpful in ascertaining a

correct tariff classification. Garments that are not sleepwear

may fall into various fashion categories besides sportswear,

including \"loungewear\" or \"leisure wear\".

In classification, the most persuasive evidence is the

garment itself. The court in Mast Industries, Inc. v. United

States, 9 CIT 549, 552, (1985), aff\'d 786 F.2d 1144 (CAFC, April

1, 1986), citing United States v. Bruce Duncan Co., 50 CCPA 43,

46 C.A.D. 817 (1963), pointed out that \"the merchandise itself

may be strong evidence of use.\" Customs believes this basic

principle is especially valid in this case.

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Customs has examined all of the submitted samples, original

and revised, and we believe these garments are multi-purpose

garments that may be best characterized as \"loungewear\". Nothing

in the construction or styling of the garments makes them

especially suitable as sleepwear or indicate that they would be

principally used as such. In fact, the fabric, design, styling

and construction of these garments makes them suitable for

various purposes, including wearing in public. Additionally,

certain features would seem to detract from a classification of

the garments as sleepwear and support classification as other

than sleepwear, such as, the lack of a fly and presence of side

seam pockets on the pants, and the manner in which the garments

are marketed and sold.

In HRL 956507 of October 11, 1994, Customs classified a pair

of men\'s woven cotton flannel pants as pants of heading 6203,

HTSUSA, and not as sleepwear. The pants therein were similar to

the pants and shorts at issue here in that they had side seam

pockets and no fly. In ruling the garment was not sleepwear,

Customs stated:

Likewise, the presence of a front fly is a matter of

common sense and convenience in the case of pajamas, but

such a feature might be avoided in the design of loungewear

of simple construction. The decency element associated with

wearing apparel might dictate a closure on a fly or no fly

at all in the case of loungewear, whereas in the case of

pajamas, unsecured flys are common. This understanding is

confirmed by information provided by the trade.

You have not provided any advertising information regarding

the subject garments. The only information submitted is that the

garments will be sold in men\'s furnishing departments or

sleepwear departments within department stores, and that the

garments will each have a hangtag affixed to them stating \"Tommy

Hilfiger Sleepwear\". Based upon the submission of the garments

as separates, Customs assumes these garments are indeed sold as

separates. While Customs recognizes that in women\'s fashions

today, mix and match sleepwear is a commercial reality, we have

not seen it in men\'s fashions. In women\'s fashions, mix and

match is often a function of not only choice in selection, but

offered to accommodate sizing variations, i.e., needing a larger

sized top than bottom, or vice versa. Customs is unaware of such

sizing difficulties in men\'s sleepwear. Men\'s sleep bottoms

(shorts or pants) are advertised, but Customs has not seen

advertisements for separate sleep tops or men\'s mix and match

sleepwear separates. However, Customs\' National Import

Specialist who reviewed this merchandise has found several

advertisements for men\'s loungewear separates.

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In HRL 951032 of May 7, 1992, Customs classified five cotton

jersey knit men\'s garments as outwear garments, although claimed

to be sleepwear. In that ruling, Customs indicated we believe

the garments were \"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 to

bed for sleeping.\" As stated above, Customs views the subject

garments also to be loungewear, i.e., comfortable, casual attire

to be worn in or around the home, and even in some cases, on the

street.

The affixation of a hangtag to each garment stating \"Tommy

Hilfiger Sleepwear\" is of little significance in this case. The

garments are themselves the best evidence of their

classification. We also note that the letterhead of the

specification sheet which was submitted to Customs as part of the

original ruling request shows the Tommy Hilfiger name and logo at

the top with \"Robes-Lounge-Sleepwear\" appearing immediately under

it. This grouping would appear to indicate that loungewear is

grouped with sleepwear and robes. Thus, while you indicate your

company is a sleepwear and robe company, you fail to indicate if

loungewear is included in its line. The specification sheet

would seem to indicate that it is.

As to HRL 957134 of April 4, 1995, that ruling dealt with

the classification of men\'s woven cotton pajamas and matching

robe. We note that in that case the garments were sold

separately, however, they were advertised together. Customs

believes this ruling is distinguishable from the instant case

based upon the garments themselves and the information presented

in that case regarding marketings and advertisements.

Based upon the above analysis, the subject garments,

original and revised, are not classifiable as sleepwear. They

are classified as men\'s knit pants and tops.

HOLDING:

NYRLs 807639, 807640 and 807641 properly classified styles

75002T, 75012T, 950027 and 85002T.

Styles 75002T and style 75012T, original and new samples

(revised), are classified as men\'s cotton knit pullovers in

subheading 6110.20.2065, HTSUSA, textile category 338, dutiable

at 20.3 percent ad valorem.

Style 950027, original and new sample, is classified as

men\'s knit shorts in subheading 6103.42.1050, HTSUSA, textile

category 347, dutiable at 17 percent ad valorem.

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Style 85002T, original and new sample, is classified as

men\'s knit trousers in subheading 6103.42.1020, HTSUSA, textile

category 347, dutiable at 17 percent ad valorem.

The designated textile and apparel category may be

subdivided into parts. If so, the visa and quota requirements

applicable to the subject merchandise may be affected. Since

part categories are the result of international bilateral

agreements which are subject to frequent renegotiations and

changes, to obtain the most current information available, we

suggest you check, close to the time of shipment, the Status

Report On Current Import Quotas (Restraint Levels), an internal

issuance of the U.S. Customs Service which is updated weekly and

is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation

(the ninth and tenth digits of the classification) and the

restraint (quota/visa) categories, you should contact your local

Customs office prior to importation of this merchandise to

determine the current status of any import restraints or

requirements.

Sincerely,

John Durant, Director

Commercial Rulings Division