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HQ 953834

August 19, 1993

CLA-2 CO:R:C:T 953834 jb


TARIFF NO.: 6110.30.3055

William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Reconsideration of Ruling Letter 882076; pullover v. loungewear; marketing and advertising important factors but controlling factor is the garment itself

Dear Mr. Maloney:

This ruling is in response to your request, dated April 6, 1993, on behalf of your client, Venture Stores, Inc., for reconsideration of New York Ruling (NYRL) 882076, dated February 4, 1993, regarding the proper classification of a women's fleece garment. A sample was submitted to this office for examination.


The merchandise, style number 55420 and referred to as a fleece "skimp", was the subject of NYRL 882076, and was classified as a pullover under subheading 6110.30.3055, HTSUSA.

The garment at issue consists of a woman's "skimp" constructed from knitted fleece fabric with a fiber content of 65 percent polyester and 35 percent cotton. The garment is loose- fitting, extends below mid-thigh and features a rib knit neckline, long sleeves with rib knit cuffs, and a rib knit bottom.


Whether the submitted merchandise is classifiable as a women's pullover in subheading 6110.30.3055, HTSUSA, or as sleepwear in subheading 6108.32.0010, HTSUSA, or as a similar article in subheading 6108.92.0030, HTSUSA?


Classification of merchandise under the HTSUSA, is in accordance with the General Rules of Interpretation (GRI). The GRI require 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 taken in order.

In classifying sleepwear, Customs follows court decisions and long standing classification practices in its interpretation of which garments are classifiable as sleepwear (or nightwear). In Mast Industries v. United States, 9 CIT 549, aff'd 786 F.2d 1144 (1986), the court stated that the definition of nightclothes was "garments worn to bed."

In St. Eve International, Inc. v. United States, 11 CIT 224 (1987), certain 100 percent cotton knit, nonconfining garments in a variety of colors, with prints covering the front of the garments were held to be classifiable as "nightwear" rather than as dresses, blouses, or shirts. Relying on United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F2.d 373 (CAFC) Cert. den., Carborundum Co. v. United States, 429 U.S. 979 (1976), in which the appeals court established criteria to be applied in determining the chief use of an imported article in the absence of special language or context, the court considered the following factors to be determinative:

1. general physical characteristics of the merchandise;

2. expectations of the ultimate purchasers;

3. channels, class or kind of trade in which the merchandise moves;

4. environment of the sale and the manner in which the merchandise is advertised and displayed;

5. use, if any, in the same manner as merchandise which defines the class;

6. the economic practicality of so using the import;

7. recognition in the trade of this use;

Applying these criteria, the court found that the merchandise was designed as sleepwear, in that it was comprised of lightweight 100 percent cotton knit, with a loose silhouette, flat seams, a large neck, few buttons and no zippers, gores or insets. Furthermore, it was established that the merchandise was manufactured and advertised in sales catalogues and in the fashion media as sleepwear and that is was sold mainly in the sleepwear departments of major retail stores throughout the country. It was also demonstrated that the garments were longer than most blouses and shirts; they would be too bulky to be tucked into a skirt or pants; many of the prints, because they were positioned from neck to hem, would be interrupted and lose their design value if belted or tucked into skirt or pants; and that the fabric was too sheer to be worn out of doors without undergarments.

In T.D. 87-118, HRL 084877, dated September 5, 1989, it was also decided that a woman's finely knit oversized pullover designated as "One Size Fits All", and featuring a round rib knit neck, 3/4 length hemmed sleeves, one breast pocket and a hemmed bottom with side slits extending to the mid-thigh, was classifiable as a "nightshirt". Stressing the same criteria used in St.Eve, it was concluded that although resembling a woman's oversized shirt, the garment was bought, sold and marketed as a sleepshirt.

Using similar reasoning, in regard to the classification of a woman's jacket as either an indoor coordinate jacket or an outdoor "coat", the court in Pollak Import Export Corp. v. United States, Slip Op. 92-12, 26 Cust. Bull. and Dec., No. 11, at 7 (decided February 14, 1992), held that based on the general physical characteristics of the jacket, the expectations of the ultimate purchasers, the channels of trade in which the jacket was displayed, and the use of the jacket, it concluded that this garment was chiefly used as a jacket and must be classified accordingly.

The documentary evidence which you made available to this office is as follows:

1. A copy of an internal department listing which shows several of the different Venture Store departments including sleepwear and robes/loungewear. The subject skimps were ordered by the robes/loungewear department.

2. A copy of an import purchase order covering the fleece skimps

3. A sample of the hangtag and label bearing the trademark "Nite Mates"

4. A copy of a Venture Store adjacency plan which directs the stores on how to display merchandise. The fleece skimps are displayed for sale with sleepwear and loungewear.

5. A copy of a print ad published in November 1992, covering the fleece skimps under their old trademark "Morning Crew". The ad copy provides "Sweet Dreams start with a holiday gift of warm comfortable fleece." The print ad also notes that the garment may be found in the ladies' loungewear department. The skimp was also depicted in the advertisement next to an article of loungewear.

Based on the factors which were found to be determinative in both St. Eve and Pollak Import Export Corp., garments should be classified in accordance with their physical characteristics, use, and advertising.

The term "skimp" has no traditional or well-defined meaning in the fashion industry. The ultimate consumer is thus not directed by the terminology as to how the garment is intended to be worn, as would be the case if the word "pajama" or "robe" were used in the description of the garment. As to its physical characteristics, the garment speaks for itself and is indicative of classification (See also, HQ 088904, dated February 19, 1992 and HQ 087843, dated December 19, 1990, where it was held that the appearance of the garment itself was determinative of classification). The oversized cut of this garment evidences that it is designed and intended to be worn as loungewear. The term "loungewear" itself leads to confusion since it is a term neither provided for under the HTSUSA, nor is universally defined. As defined in Webster's Ninth New Collegiate Dictionary, 1983, at 707, loungewear suggests:
informal clothing designed to be worn at home

Features such as loose fitting, large neckline, absence of any fasteners, and below the mid-thigh length, renders this garment particularly appropriate for not only casual wear around the home, but also for running errands outside the home or going out informally.

This type of loungewear is to be distinguished from the type of intimate loungewear which, although also worn in the home, would be inappropriate to wear outside the home or in the home in the presence of others. Intimate loungewear finds its place in heading 6108, HTSUSA, which provides for, among other things, women's or girls' negligees, dressing gowns, bathrobes and similar articles. The subject skimp is not of the class or kind of garment found under this provision. This garment, in our view, could very easily be worn outside the home and used as an outerwear garment.

For the same reasons the subject garment cannot be considered as sleepwear in heading 6108, HTSUSA. As already stated, it is the opinion of this office that the appearance of the garment suggests apparel other than sleepwear. Paired with leggings, this garment easily makes the transition as an outerwear garment. It is interesting to note that the garment is neither purchased, marketed or sold as a pajama or nightgown. This particular garment is purchased by the loungewear department though displayed both in the loungewear and sleepwear department.

Though a copy of the importer's adjacency plan directing stores how and where to display the merchandise was submitted, this evidence is not itself dispositive of classification. Customs has been consistent in holding that location of sale of the article is not indicative of classification. Internal documents and descriptions on invoices may be self-serving and should only be considered in totality with other evidentiary information (See, e.g. HQ 953001, dated January 21, 1993, HQ 950503, dated June 19, 1992, HQ 088904, dated February 19, 1992, HQ 087675, dated February 4, 1991, HQ 087483, dated December 12, 1990, HQ 087772, dated November 27, 1990, HQ 087478, dated November 9, 1990, HQ 085672, dated October 29, 1989, and HQ 082624, dated March 22, 1989).

The advertisement submitted to this office also adds to the ambiguity. In the larger picture a woman is shown wearing the skimp paired with leggings, leaning on what appears to be the back of a sofa. The smaller picture, featured on the same page, shows another woman sitting on the floor dressed in the skimp, sans the leggings, and a koala bear over her shoulder. Clearly the consumer is getting a conflicting or dual message from the advertisement; namely, that the garment can be worn either as loungewear, of the outerwear type, when paired with leggings; or as loungewear, to be worn at home, without the leggings.

In light of the fact that the documentation submitted is not convincing evidence that the subject garment is to be worn as either sleepwear or loungewear (of the intimate type), and due to conflicting terminology and advertisements, the garment remains classified in subheading 6110.30.3055, HTSUSA.


The submitted merchandise was properly classified in subheading 6110.30.3055, HTSUSA, which provides for women's or girls' sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, other. The applicable rate of duty is 34.2 percent ad valorem, and the textile category is 639.

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 updated weekly and is available at the 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, 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.


John Durant, Director

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