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HQ 951825

September 10, 1992

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


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.


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".


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?


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.


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.


John Durant, Director

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