HQ 951825: Reconsideration of DD 873134; knit top and woven short; properly classified as sportswear separates; subheading 6110.30.3055, HTSUSA and subheading 6204.62.4055, HTSUSA

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951825

                       September 10, 1992


CLA-2  CO:R:C:T 951825  jb

CATEGORY:  Classification

TARIFF NO.:  6110.30.3055; 6204.62.4055

Richard M. Wortman, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017

RE:  Reconsideration of DD 873134; knit top and woven short;
     properly classified as sportswear separates; subheading
     6110.30.3055, HTSUSA and subheading 6204.62.4055, HTSUSA

Dear Mr. Wortman;

     This is in reply to your letter, dated May 6, 1992, on
behalf of your client, the North American Underwear Co. Inc.,
requesting reconsideration of District Decision (DD) 873134,
dated April 27, 1992, regarding the classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), of a knit top and woven shorts, under subheading
6110.30.3055, HTSUSA, and subheading 6204.62.4055, HTSUSA,
respectively.  After careful consideration, that decision is
deemed correct.  Samples were provided to this office for
examination.

FACTS:

     The merchandise, Style number E7423 (resubmitted for our
inspection), which was the subject of DD 873134, consists of a
knitted pullover and a pair of shorts, and was classified under
subheadings 6110.30.3055 and 6204.62.4055, respectively, as
sportswear separates--pullover and shorts.

     The submitted sample consists of a knit upper body garment
and woven shorts.  The garment is 65 percent polyester and 35
percent rayon knit fabric and features short sleeves,  crew neck
and a large woven breast pocket made of the same fabric as the
shorts.  The shorts are 100 percent cotton woven fabric with a
covered elastic waistband.



     You state that Style number E7423 was not properly
classified and should be reclassified in subheading 6208.21.0020,
HTSUSA, as a pajama set, for the following reasons:

     1. The United States Court of International Trade in        
        examining the issue of sleepwear in Mast Industries v.   
        United States, (Mast), 9 C.I.T. 549 (1985), aff'd, 4 Fed
        Cir (T) 79786 F.2d 1144 (1986), determined that garments
        which are designed, manufactured, marketed and sold as   
        nightwear are properly classifiable as sleepwear for     
        tariff purposes.
                                
     2. The labeling of the garment is used exclusively in      
        connection with sleepwear.

     3. The garment will be marketed in major department stores  
        in the sleepwear department.  In this regard you         
        emphasize several purchase orders referring to the       
        submitted articles as "pajamas".

     4. The garment is marketed with a hangtag which states      
        "sleepwear".

ISSUE:

     Whether the garment is properly classifiable as sleepwear,
i.e., a "pajama set" in heading 6208, HTSUSA, or as sportswear
separates in heading 6110, HTSUSA and heading 6204, HTSUSA?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI).  GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes, taken in
order.  Where goods cannot be classified solely on the basis of
GRI 1, the remaining GRI will be applied, in the order of their
appearance.

     The term "pajamas" encompasses a wide array of definitions
from several sources, among which are:

     1. The American College Dictionary, 1970, at page 871,      
        "night-clothes consisting of loose trousers and jacket".

     2. The Random House College Dictionary, 1968, at page 956,
        "night clothes consisting of loose-fitting trousers and  
         jacket".



     3. Webster's Ninth New Collegiate Dictionary, 1991, at page
        847, "a loose, usually two piece lightweight suit        
        designed for sleeping or lounging".

     4. The Fashion Dictionary, Mary Brooks Picken, 1973, at page
        264, "suit consisting  of coat or blouse and trousers".

     5. The Modern Textile and Apparel Dictionary, 1973, at page
        409, "coat or blouse and trousers".

     In addition, The Guidelines for the Reporting of Imported
Products in Various Textile and Apparel Categories (Guidelines),
CIE 13/88, dated November 23, 1988, state:

     Pajamas are worn by both sexes and all ages.  They consist
     of an upper part, pullover or coat style, with long, short,
     or no sleeves and a lower part, short, intermediate, or long
     trouser-like garments or of any style panties.  The lower
     part sometimes encloses the feet.  Pajamas are sleepwear. 
     Garments called "sleepers" (sometimes called Dr. Denton's),
     one- or two-piece knit sleeping garments for girls, sizes 2-
     4 and boys 2-7, buttoning in front or back and with drop
     seats in the one-piece style, are in this category.

     Your argument that the Court in Mast emphasized that
garments which are designed, manufactured, marketed and sold as
nightwear are properly classifiable as sleepwear is well taken,
yet it should similarly be noted that Court also stated that "the
merchandise itself may be strong evidence of use", United States
v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963).

     When ruling on similar merchandise in the past, Customs'
policy has been to carefully examine the physical characteristics
of the garments in question.  When this has not proven
substantially helpful, other extrinsic evidence such as
advertising and marketing information has been reviewed.  As was
stated in HQ 951754, dated June 25, 1992:

     The subject merchandise is of a type of garment that is
     capable of being used for more than one purpose.  Use of
     this article both as shorts and as sleepwear is feasible and
     it is this duality which complicated classification.  When
     confronted with garments which are claimed to be of a
     particular class, yet strongly resemble articles of another
     class, Customs will first examine the article itself and its
     particular design features and thereafter any other
     extrinsic evidence pertaining to the marketing, advertising
     and sale of the article...




     The mere fact that the subject merchandise will be displayed
     in the intimate apparel department of a large store that
     also carries outerwear does not conclusively prove that the
     garment is either sleepwear or underwear.  It is well
     established that intimate apparel departments include
     merchandise other than intimate apparel.  In fact, virtually
     any issue of BODY FOUNDATIONS AND INTIMATE APPAREL, the
     trade publication for the intimate apparel business, will
     demonstrate that intimate apparel departments market a wide
     variety of "leisurewear" (i.e., loose, comfortable clothing
     worn in or outside the home in a causal environment).  This
     fact is verified by a statement by the intimate apparel
     buyer from Target stores who acknowledges that her
     department carries outerwear sundresses.

     Boxer shorts become a natural for spring/summer lounging and
     sleeping.  They are comfortable and practical as well,
     making the transition from the house to the streets with
     ease.

     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 HQ 951032, dated May 7, 1992, a National
Import Specialist examining similar merchandise reported:

     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. 
     (Emphasis added).

(See also, HQ 084090, dated June 12, 1989).

     Reference to the Guidelines is also problematic when one
considers the broad definition employed in the discussion of
"pajamas".  In HQ 087478, dated November 9, 1990, reference was
made to the Guidelines in a determination involving similar
garments:

     The Guidelines for the Reporting of Imported Products in
     Various Textile and Apparel Categories, (Textile and Apparel
     Guidelines) 53 FR 52563, 52569 (December 28, 1988), discuss
     pajamas and other nightwear in pertinent part as consisting
     of "an upper part, pullover or coat style, with long, short
     or no sleeves and lower part, short, intermediate, or long
     trouser like garments."  As we stated in Headquarters Ruling
     Letter (HRL) 085612 dated December 11,1989, "this definition
     is quite broad, and would incorporate many garments clearly
     not sleepwear."

A cursory examination of the many other definitions of "pajamas"
from the sources previously listed, reveals a similar over-
breadth in scope.

     Careful consideration is given to the way in which the
merchandise is sold as an indication of classification.  Yet it
is to be understood that such information is weighed in
conjunction with other factors, such as, the physical
characteristics of the garment. 

     HQ 952105, dated July 21, 1992, stated:

     The manner in which merchandise is sold is a factor to be
     considered but is not determinative of its classification. 
     E.g., United States v. Ignaz Strauss & Co., Inc., 37 CCPA
     32, C.A.D. 415 (1949); Russ Berrie & Co., Inc. v. United
     States, 417 F. Supp. 1035 (1976); Borneo Sumatra Trading Co.
     v. United States 311 F. Supp. 326 (1970).  Although style
     12061D may well be displayed and sold in an intimate apparel
     department, we are advised by the National Import Specialist
     familiar with the trade that, in addition to underwear and
     sleepwear, intimate apparel departments include a variety of
     other merchandise, such as dresses, rompers, jumpsuits,
     oversize shirts and boxer-style shorts.

     ... Where Customs has found women's boxer-style shorts to be
     classifiable as sleepwear, both the material from which the
     garment was constructed, as well as advertising material
     describing the article, unambiguously supported
     classification in heading 6208.

     Also, as noted in HQ 085672, dated October 29, 1989:

     Another difficulty arises where the environment of sale, in
     addition to the garment styles, is ambiguous.  Examination
     of the trade press indicates that sleepwear/intimate apparel
     departments of stores have sought to increase sales by
     offering a variety of clothes in addition to sleepwear and
     underwear.  Visitors to the stores themselves reveal that
     this is indeed the case.  Thus, an importer's claim that the
     merchandise is sold in a sleepwear department is not
     conclusive of its classification.  In many cases, garments
     sold in these departments are indistinguishable from those
     sold elsewhere.


     When goods are not clearly sleepwear, evidence of marketing
     in the United States as sleepwear is a factor in
     classification.  In determining whether a particular garment
     is to be worn to bed for sleeping, Customs will consider the
     sample itself and whatever information the importer can
     supply about how the garment will be marketed and sold...

     With regard to documentation in support of a claimed
     classification, letters of credit, purchase orders,
     contracts, confirmations, and other documentation incidental
     to the purchase of the merchandise cannot be regarded as
     conclusive.  These documents can be self-serving and do not
     necessarily reflect how merchandise is advertised in the
     U.S. market.

     Thus, in determining whether garments qualify as "pajamas",
Customs has relied on two factors:

     a. the physical attributes of the garment; and

     b. the advertising/marketing information

     It is not enough to claim advertising or marketing as an
indication of classification.  Where the physical attributes of
the garment do not lend support to the claim that the garment is
sleepwear, neither advertising nor marketing (nor any other
documentation which can be self-serving) alone will be considered
conclusive enough to substantiate classification for tariff
purposes.

     As concerns the submitted sample, while the top is made of
fairly soft fabric, the woven shorts are stiff.  The garments are
also not loose fitting.  Though the definitions of "pajamas"
referred to above are vague in scope, they do share one concept,
i.e., that the garment be "loose-fitting".  The loose fit of the
garment reflects a design demonstrative of comfort and ease
normally associated with sleepwear.  Such an association cannot
be made with the submitted garments.  

     It is for the foregoing reasons that the subject garments
were correctly classified in DD 873134 as sportswear separates in
heading 6110, HTSUSA and heading 6204, HTSUSA.









HOLDING:

     The sample garments, Style number E7423, the subject of DD
873134, were properly classified as sportswear separates.  The
applicable subheading for the pullover is 6110.30.3055, HTSUSA,
which provides for other women's or girls' pullovers and similar
articles, knitted or crocheted, of man-made fibers.  The
applicable rate of duty is 34.2 percent ad valorem and the
textile category is 639.  

     The applicable subheading for the shorts is 6204.62.4055,
HTSUSA, which provides for women's shorts of cotton.  The
applicable rate of duty is 17.7 percent ad valorem and the
textile category is 348.

     Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, your client should contact the local Customs office
prior to importation of this merchandise to determine the current
status of any import restraints or requirements.

     The designated textile and apparel category may be
subdivided into parts.  If so, 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 negotiations and
changes, to obtain the most current information available, we
suggest that your client check, close to the time of shipment,
the Status Report on Current Import Quotas (Restraint Levels),
an issuance of the U.S. Customs Service, which is available for
inspection at the local Customs office.



                           Sincerely,




                           John Durant, Director
                           Commercial Rulings Division