HQ 960928

February 15, 1999

CLA‑2 RR:CR:TE 960928 SG

CATEGORY: Classification

TARIFF NO: 6110.30.3055; 6104.63.2030; 6104.63.2011; 6104.43.2010;
6104.42.0010

Thomas G. Travis, Esq.

Sandler, Travis & Rosenberg

5200 Blue Lagoon Drive

Miami, Florida 33126

RE: Classification of women's garments; sleepwear vs. loungewear

Dear Mr. Travis:

This is in response to your letter of July 1, 1997, on behalf of your
client, Sara Lee Knit Products (Sara Lee), requesting a binding
classification ruling on five garments, pursuant to the Harmonized
Tariff Schedule of the United States (HTSUS). You claim that the
garments are classifiable as sleepwear garments and have submitted
arguments, various documents, and sample garments to substantiate your
claim.

FACTS:

We are advised that the garments are plus sized and will be assembled in
Mexico, Costa Rica, and various other countries from U.S. formed and cut
fabrics. All the styles will be manufactured in a 50 percent cotton, 50
percent polyester waffle knit fabric. Style JM 13 will also be
manufactured in a 100% cotton knit jersey fabric. You advise that when
imported the garments will have a hanging tag stating "Loungewear".

Style JM 10 is a garment with long raglan overlock stitched hemmed
sleeves, satin piping around the round neckline, and an overlock
stitched hemmed bottom.

Style JM 11 is a pair of boxer shorts with an elasticized self-covered
waistband, a fake satin drawstring bow at the front center of the
waistband. It has overlock stitched hemmed leg openings.

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Style JM 12 is a pair of long pants with loose overlock stitched hemmed
pant legs, and an elasticized self-covered waistband with a fake
drawstring bow at the center front of the waist.

Style JM 13 is a pullover garment with long raglan sleeves, and satin
piping around the round neckline. The garment is approximately 42 inches
long and extends to the knee. It has 4 inch side vents at the hemline
which is hemmed with an overlock stitch, as are the sleeve bottoms. This
style will be imported both in the waffle knit and jersey fabric. The
jersey knit fabric garment will be imported under style number JM13P2.

Style JM 14 is a tunic-style garment described as a "lounger". It is
approximately 49 inches long and extends to the ankles. The garment has
long, raglan sleeves, satin piping around the round neckline, and inseam
pockets at each side of the garment at hip level. It has 9 inch side
vents at the hemline which is hemmed with an overlock stitch, as are the
sleeve bottoms.

You indicate that although the garments will have tags on them labeling
them as "loungewear", their primary use will be as sleepwear. You
contend that the labeling of the garments as "loungewear" is a marketing
attempt to enhance sales by creating additional "intimate" uses for the
garments. No physical changes are made to the garments to adapt them for
use as outerwear.

It is your position that both the loose fit of the garments, the satin
piping, and the lightweight fabric support classification as sleepwear
garments. You state that the channels of trade, specifically, the "*Just
My Size*" brand name shows name recognition as underwear/sleepwear. It
is your view that the loungewear tags on the garments, as well as the
advertisements should be considered to be an additional "intimate" use
of the garment, and a sales stratagem, rather than a contrary use of the
garments.

In support of your claims you submit an article entitled "Lounge Looks
Wake Up Sleepwear" which appeared in the March 17, 1997, issue of
*Discount Store News,* which indicates that retailers have shifted from
traditional sleepwear to loungewear to boost overall sleepwear sales.
You have also submitted a copy of several pages from recent catalogues,
as well as the March 1997 issue of *Market Maker by BFIA Body
Fashions/Intimate Apparel.*

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear
under Heading 6108, HTSUS, or as outerwear garments under heading 6110,
HTSUS and 6104, 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

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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.

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 6103,
HTSUS. The court therein stated:

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\....

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You argue that the appearance and construction features of the garments
at issue, including the lightweight fabric, satin piping, and loose
construction, make them designed for use as sleepwear. In addition, it
is your view that the sleep shirts (Styles JM13 and JM14) are too bulky
to be tucked into pants. The fact that there are no pockets on the
shorts (Style JM11) is contended to be characteristic of sleepwear.

We have physically examined the garments at issue and do not agree that
the weight of the fabric, comfortable fit, and satin trim are not found
in general apparel and are limited to sleepwear or intimate apparel.
Neither the features on the garments nor the overall appearance of the
garments themselves are absolute indicators of sleepwear. The appearance
of these garments is, in fact, ambiguous. Nothing about the design or
appearance of the garments makes them unsuitable for use as sleepwear,
with the possible exception of the in-seam pockets on style JM14.
However, the counter argument that nothing about the design or
appearance makes them unsuitable for use as general apparel is equally
true. In such circumstances, the principal use is

determined by the manner in which the garments are designed, marketed
and sold.

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.

When considered with other information presented, Customs does not find
the fact that the garments at issue here are sold by the Underwear Group
of Sara Lee Products, which you claim does not sell outerwear garments,
under the "*Just My Size*" brand name 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.

You advise that the garments will be imported with a hang tag stating
"Loungewear". You claim that the term "Loungewear" is merely used in the
trade to increase sales for what is "sleepwear". In support of this
claim a newspaper article was submitted on the use of the term by the
intimate apparel industry. An analysis of the article indicates that
loungewear

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encompasses multi-use articles that can be used as traditional sleep
garments, but are also for

other purposes. In [Mast,]{.underline} 92 C.I.T. 549, at 551, the court
pointed out that the expert witnesses in that case agreed \"that most
consumers purchase and use a garment in the manner in which it is
marketed.\" The tag is a factor to be considered in determining how this
garment is marketed and likely to be used by purchasers, though it is
not determinative in and of itself.

We have reviewed several pages from "*Just My Size*" and "*Hanes Her
Way*" catalogues which advertise similarly styled garments. We note that
these garments are advertised as "Light, soft lounge abouts",
"Loungewear", and "lounger". The potential uses of the garments are
discussed, omitting any terms such as pajamas, nightshirts, etc. The
garments are referred to

generically as shorts, pants, Tees, tunics, etc. and are, in our view,
more likely to give the ultimate consumer the idea that they are items
of general apparel, rather than sleepwear. The information you submitted
does not show that the garments are merchandised to the consumer as
garments to be worn exclusively as sleepwear.

We note that in your submission you state that "*(n)o physical changes
are made to the garments to adapt them for use as
[outerwear]{.underline}*". You also concede that the garments may be
used as outerwear (albeit inside the home). It is however, your 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." Because the submitted samples are capable of being used to
lounge around the home does not change what you claim is their principal
use and character as sleepwear.

As the court noted in Mast, at 551, \"most consumers purchase and use a
garment in the manner in which it is marketed.\" In our view, these
garments are clearly 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 else in
the advertising copy 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.

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. These garments can easily make the transition from inside the
home (in a private setting) to outside the home (and a more social
environment). In addition, all the samples submitted are made of fabric
heavy enough for outdoor use.

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

As the subject garments are composed of a mixture of textile materials,
that is, a blend of 50 percent polyester and 50 percent cotton we look
to Subheading Note 2 to Section XI, HTSUSA, which states:

\(A\) Products of chapters 56 to 63 containing two or more textile
materials are to be regarded as consisting wholly of that textile
material which would be selected under note 2 to this section for the
classification of a product of chapters 50 to 55 consisting of the same
textile materials.

\(B\) For the application of this rule:

\(a\) Where appropriate, only the part which determines the
classification under general interpretative rule 3 shall be taken into
account;

\* \* \*

Note 2 to Section XI, HTSUSA, states:

\(A\) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902
and of a mixture of two or more textile materials are to be classified
as if consisting wholly of that one textile material which predominates
by weight over each other single textile material.

When no one textile material predominates by weight, the goods are to be
classified as if consisting wholly of that one textile material which is
covered by the heading which occurs last in numerical order among those
which equally merit consideration.

In the case of the subject merchandise, for purposes of classification
as the subject merchandise is composed of a blend of 50 percent cotton
and 50 percent polyester fabric, as per the above referenced notes, no
one textile material predominates by weight, and the garments are
classified based on the heading which occurs last in numerical order, in
this case, "of synthetic fibers".

We would like to note however, that the classification determination
rendered is based on the fiber content you have submitted to us, that
is, a precise parity in the cotton and polyester

blend of the fabric. Even a slight change in the fiber content may
result in a change in the classification and the applicable quota/visa
restrictions. As such, Customs may subject the garments to laboratory
analysis at the time of importation. In that respect, we advise you to
inform Customs of any changes in the fabric composition of the subject
merchandise or risk reclassification by Customs.

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HOLDING:

The pants, style JM 12, are classified in subheading 6104.63.2011
HTSUSA, which provides for "Women's or girls' suits, ensembles,
suit-type jackets, blazers, dresses, skirts, divided skirts, trousers,
bib and brace overalls, breeches and shorts (other than swimwear),
knitted or crocheted: Trousers, bib and brace overalls, breeches and
shorts: Of synthetic fibers: Other: Other: Trousers and breeches:
Women's: Other." The applicable general rate of duty is 29.1 percent ad
valorem and the textile quota category is 648.

The garments, style JM 13 and 14 are classified in subheading
6104.43.2010 HTSUSA, which provides for "Women's or girls' suits,
ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts,
trousers, bib and brace overalls, breeches and shorts (other than
swimwear), knitted or crocheted: Dresses: Of synthetic fibers: Other:
Women's." The applicable general rate of duty is 16.5 percent ad valorem
and the textile quota category is 636.

Style JM 13P2 is classified in subheading 6104.42.0010 HTSUSA, which
provides for "Women's or girls' suits, ensembles, suit-type jackets,
blazers, dresses, skirts, divided skirts, trousers, bib and brace
overalls, breeches and shorts (other than swimwear), knitted or
crocheted: Dresses: Of cotton: Women's." The applicable general rate of
duty is 11.8 percent ad valorem and the textile quota category is 336.

Style JM 10, which is designed to cover the upper part of the body, is
classified in subheading 6110.30.3055 HTSUSA, which provides for
"Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar
articles, knitted or crocheted: Of man-made fibers: Other: Other: Other:
Other: Other: Women's or girls." The applicable general rate of duty is
33.1 percent ad valorem and the textile quota category is 639.

The shorts, style JM 11, are classified in subheading 6104.63.2030
HTSUSA, which provides for "Women's or girls' suits, ensembles,
suit-type jackets, blazers, dresses, skirts, divided skirts, trousers,
bib and brace overalls, breeches and shorts (other than swimwear),
knitted or crocheted: Trousers, bib and brace overalls, breeches and
shorts: Of synthetic fibers: Other: Other: Shorts: Women's." The
applicable general rate of duty is 29.1 percent ad valorem and the
textile quota category is 648.

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.

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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