us-cbp-cross-rulings-hq-081954•HQ 081954: Tariff classification of a women's knit garment and matching drawstring bag
HQ 081954: Tariff classification of a women's knit garment and matching drawstring bag
us-cbp-cross-rulings-hq-081954HQ 081954: Tariff classification of a women's knit garment and matching drawstring bagGuidance
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 081954
April 12, 1988
CLA-2 CO:R:C:G 081954 CMR 828341
CATEGORY: Classification
TARIFF NO.: 384.8634; 6108.32.0010
Jayne A. Czik, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Tariff classification of a women's knit garment and matching
drawstring bag
Dear Ms. Czik:
This is in response to your letter of February 12, 1988, on
behalf of your client A.J. Schneierson International requesting a
ruling on the classification of a women's knit garment
manufactured in Taiwan.
FACTS:
The merchandise at issue, style number 6510, is a women's
short sleeve garment made from a finely knit fabric of 65%
polyester and 35% cotton. (The submitted sample, however, is
100% polyester.) The garment is oversized and will be imported
in sizes small, medium, and large. It has a rib-knit, crew
neckline; very short straight sleeves with hemmed edges; a
straight, hemmed bottom; and a silk-screened logo, with the
words, "THE SLEEP SACK", on the upper-left side at the chest.
The garment is sold in a knit drawstring bag which also has the
silk-screened logo on it along with information about the fiber
content, country of origin, and washing instructions. The bag is
made from the same material as the garment and matches it in
color. Both you and our National Import Specialist agree that
the matching drawstring bag is classified under item 706.4135,
Tariff Schedules of the United States Annotated (TSUSA).
However, we disagree.
ISSUE:
Whether the sample garment should be classified as a women's
shirt under item 384.8045, TSUSA, or as sleepwear under item
384.8634, TSUSA, and what is the proper classification of the
matching bag.
-2-
LAW AND ANALYSIS:
In Mast Industries v. United States, 9 CIT 549, 552 (1985),
aff'd, 786 F. 2d 1144 (1986), the court noted the definition of
"nightwear" as "garments to be worn to bed" and a "nightshirt" as
"a nightgown resembling a shirt." The court held that the
particular garment at issue was classifiable as nightwear since
it was designed, manufactured, marketed and used as nightwear.
Although the garment at issue here resembles a women's
oversized shirt, it is asserted by you that it is intended for
use as nightwear. You state in the ruling request that this
garment "has been designed, ordered and will be sold as
nightwear." It will be sold in sleepwear specialty stores and in
the sleepwear departments of various retailers. Customer orders
were submitted as evidence that the garment is being bought for
sale as sleepwear, and a page from the subject company's catalog
was submitted to demonstrate that the item is being marketed as
sleepwear.
The court in Mast Industries, Inc., supra, at 552 noted 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).
The garment is designed to be loose-fitting and has a logo on the
front which identifies it as "THE SLEEP SACK". You contend that
the logo limits use of the garment to sleepwear and will most
likely preclude its use as sportswear. The presence of the logo
conspicuously on the front of the garment, the marketing of the
garment as nightwear and its sale in sleepwear departments leads
us to agree with you that it will be used as nightwear. We
acknowledge "that most consumers tend to purchase and use a
garment in the manner in which it is marketed." Mast Industries,
Inc., supra, at 551.
We agree with you that the subject garment is classifiable
as nightwear since it is designed, manufactured, marketed and
sold for use as nightwear.
As stated above, you and our National Import Specialist
agree that the matching bag is classifiable as luggage under item
706.4135, TSUSA. We disagree, and believe the bag is
classifiable as a container under General Headnote 6(b)(i).
The relevant portions of 6(b)(i) provide:
(b) Not Imported Empty: Containers or holders if
imported containing or holding articles are subject to
tariff treatment as follows:
-3-
(i) The usual or ordinary types of shipping or
transportation containers or holders, if not designed
for, or capable of, reuse, and containers of usual type
ordinarily sold at retail with their contents, are not
subject to treatment as imported articles. Their cost,
however, is, under section 402 of the tariff act, a part
of the value of their contents and if their contents are
subject to an ad valorem rate of duty such containers or
holders are, in effect, dutiable at the same rate as
their contents, * * *.
In a previous ruling, Ruling Letter 072762 of July 25, 1984,
we stated that determination of whether retail containers are
usual or unusual must be done on a case-by-case basis utilizing
five factors.
1) Conventionality of the container
2) Relationship of the contents to the container
3) The cost relationship of the contents to the container
4) Whether the container serves a useful purpose with
respect to the contents
5) Whether the container by its design has no useful life
after its contents are consumed and is apt to be
discarded
The language in 6(b)(i) which governs the classification of
this bag is: "containers of usual types ordinarily sold at retail
with their contents." In this case, the garment is imported in
the matching bag. The bag is of the same material and the same
color as the nightwear. It has the same logo along with
information pertaining to the care of the nightwear. It is very
clearly closely related to its contents (the nightwear). Since
the bag prominently displays information about the nightwear,
along with the logo and a drawing of the nightwear on its
exterior surface, it appears to be the type of container that
would normally be sold with its contents at retail, and not
separately. Since the bag is so closely related to its contents,
its value is likewise related. As a bag alone, it does have some
value; however, the value of the thing sold is the contents and
not the bag. As to whether the bag serves a useful purpose, we
believe it does. It provides pertinent information about the
nightwear within it; a convenient means of packaging; and a
creative inducement to purchase. Granted the consumer may use
the bag for other purposes than storing the garment after the
initial purchase, but such uses are merely fugitive. For these
reasons, we believe it to be the usual type of container that is
normally sold at retail with its contents within the meaning of
6(b)(i).
-4-
Under the proposed Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), the bag is classifiable in the same
manner and for the above stated reasons. The applicable General
Rule of Interpretation in the HTSUSA is GRI 5. Its pertinent
parts are as follows:
(a) Camera cases, musical instruments cases, gun cases,
drawing instrument cases, necklace cases, and similar
containers, specially shaped or fitted to contain a
specific article or set of articles, suitable for long-
term use and presented with the articles for which they
are intended, shall be classified with such articles
when of a kind normally sold therewith. The rule does
not, however, apply to containers which give the whole
its essential character.
The bag is designed specifically for the nightwear it
contains and has a durability comparable to it since the bag is
made of the same material. It is presented with the nightwear,
and for the reasons stated above, is of a kind normally sold with
its contents. Lastly, it does not affect the essential character
of the nightwear it contains. See Explanatory Notes, Harmonized
System, General Rules of Interpretation, page 6.
HOLDING:
The garment and bag are classifiable under item 384.8634,
TSUSA, textile category 651, other women's, girls', or infants'
wearing apparel, not ornamented, of man-made fibers, knit,
pajamas and other nightwear. The rate of duty is 17 percent ad
valorem.
Under the proposed HTSUSA, the garment and bag are
classifiable under subheading 6108.32.0010, textile category 651,
a provision including women's nightdresses and pajamas of man-
made fibers, knitted or crocheted. The rate of duty is 17
percent ad valorem.
-5-
The classifications given above under the proposed HTSUSA
represent the present position of the Customs Service. If there
are changes before enactment, this advice may not continue to be
applicable.
Sincerely,
John Durant
Acting Director
Commercial Rulings Division
6cc: Area Director, NY Seaport
1cc: District Director, Charlotte, North Carolina
1cc: District Director, Charleston, South Carolina
1cc: NIS Mike Crowley
1cc: NIS Kevin Gorman
1cc: CITA
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