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HQ 955341

May 12, 1994

CLA-2 CO:R:C:T 955341 NLP


TARIFF NO.: 6204.62.4055; 6211.32.0081

Regional Commissioner of Customs
Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Classification of pajamas vs. outerwear; heading 6208; Textile Guidelines; HRLs 951754, 951032, 952105, 085672, 951184 and 954074

Dear Sir:

This is a decision on application for further review of protest no. 1001-3-104726, filed on July 21, 1993, by Siegel, Mandell & Davidson, on behalf of their client, Bentley Lingerie, Inc., (Bentley), against your decision concerning the classification of women's garments under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the garments were submitted for our review.


The merchandise subject to this protest consists of two styles of women's garments: style nos. F294S and F296. Both styles consist of a women's upper body garment and a pair of shorts, both of which are constructed of 100% cotton flannel fabric. The upper component of style F294S is sleeveless and features a six button frontal opening, a pointed, button down shirt collar, two chest pockets, pleats below the rear yoke and a shallow rounded bottom. The inner portion of the garment contains solid colored fabric, assumed to be made of man-made fibers, which reinforces the collar, the back yoke and the button placket. The lower component has an elasticized waist with a drawstring, side seam pockets and short legs. The upper component of style F296 is also sleeveless and has a five button full front opening, two chest pockets, a hooded drawstring and side slits. The lower component has an elasticized waist with a drawstring, side seam pockets and short legs.

Upon liquidation, the top portions of style nos. F294S and F296 were classified in 6211.32.0080, HTSUS, which provides for "[t]rack suits, ski-suits and swimwear; other garments: [o]ther garments, men's or boys': [o]f cotton: [o]ther." The bottom garments of both styles were classified in subheading 6204.62.4055, HTSUS, which provides for "[w]omen's or girls' suits, ensembles,...shorts (other than swimwear): [t]rousers, bib and brace overalls, breeches and shorts: [o]f cotton: [o]ther: [o]ther: [o]ther: [s]horts: [w]omen's."

Counsel for the importer contends that the garments are pajamas and are properly classifiable in subheading 6208.21.0020, HTSUS, which provides for "[w]omen's or girls' singlets..., pajamas, negligees, bathrobes, dressing gowns and similar articles: [n]ightdresses and pajamas: [o]f cotton: [o]ther: [w]omens's" for the following reasons:

1. The United States Court of International Trade in examining the issue of sleepwear in Mast Industries v.Unite States, (Mast), 9 C.I.T. 549 (1985), aff'd, 786 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. Bentley Lingerie sells intimate apparel and since 1987 it has limited its concentration to sleepwear.

3. The garments are sold under Bentley's "ESLEEP" trademark. The garments are marketed with a hang tag which states that "This is an original "ESLEEP" flannel. A second tag states "ESLEEP products help you have the lowest impact possible on the planet by using 100% cotton in our sleepwear brand cotton sleepwear." Although there is no advertising of the specific styles, there is advertising of the trademark itself and of other flannel pajama stylings. The target group for the advertising is the young misses and juniors markets. Counsel has enclosed with their submission magazine ads depicting "ESLEEP" long sleeve cotton flannel pajamas and a sleep short set of cotton flannel and a video depicting a cable tv spot that displays young woman wearing a variety of "ESLEEP" products.

4. Styles F294S and F296 are designed as sleepwear and in designing these goods, Bentley wanted to expand its offerings to supplement its more traditional flannel pajamas. Style F294S was developed as an experimental styling based on market research indicating that female
teenagers were wearing sleeveless flannel pajamas. In addition, Bentley was aware at the time the garments were designed that hooded sleepwear was being sold in lighter weight fabrics, such as jersey knit. Bentley anticipated that this trend might spread to winter weight nightwear and designed this style as a test. The design was exported to the Canadian sleepwear market. Concerning the designs of the garments, style F294S is sleepwear because it is merely a flannel version of common shorty pajama stylings. The shirt collar feature is common to sleeveless shorty sleepwear styles. Style F296, which, while it is a less traditional design, is also sleepwear. Furthermore, these garments are similar in appearance to other pajama styles sold in the sleepwear departments of department stores. Two sample garments were purchased at two department stores and were submitted for our review.

5. The garments have been sold to sleepwear buyers for sale in the sleepwear sections of a department store, a discount store and specialty stores. Counsel has submitted a letter from the sleepwear buyer at Mandees and a letter from the assistant buyer of women's sleepwear and robes of Mervyn's, which states that these garments were bought on behalf of the store's sleepwear department and they will be sold as sleepwear on the lingerie sales floor.


Whether the subject garments are classifiable as sleepwear in heading 6208, HTSUS, or as sportswear separates in heading 6211, HTSUS, and heading 6204, HTSUS?


The classification of goods under the HTSUS is governed by the General Rules of Interpretation, (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes otherwise require, the remaining GRI's may be applied, taken in order.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories (Guidelines), CIE 13/88, dated November 23, 1988, state on page 24, that:

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.

In Mast, at page 552, the court concluded that the definition of nightclothes is "garments worn to bed." 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 the 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 Headquarters Ruling Letter (HRL) 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 complicates 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 casual environment).

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 HRL 951032, dated May 7, 1992, a National Import Specialist examining the garment stated:

...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.

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. HRL 952105, dated July 21, 1992, stated, in pertinent part:

The manner in which merchandise is sold is a factor to be considered but is not determinative of its classification... 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.

Customs has long recognized that intimate apparel/sleepwear departments often sell a variety of merchandise, some of which may be intended for use as outerwear. For example in HRL 085672, dated October 29, 1989, we stated the following:

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. Visits to 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.

With regard to documentation in support of 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.

Therefore, internal documents and descriptions should only be considered in totality with other evidentiary information. See, e.g, HRL 953001, dated January 21, 1993; HRL 950503, dated June 19, 1992; HRL 088904, dated February 19, 1992; HRL 087675, dated February 4, 1991; HRL 087483, dated December 12, 1990; HRL 087772, dated November 27, 1990; HRL 087478, dated November 9, 1990; HRL 085672, dated October 29, 1989, and HRL 082624, dated March 22, 1989.

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

We note though, that, 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 alone will be considered conclusive enough to substantiate classification for tariff purposes.

Our examination of the subject garments lead us to the conclusion that they are designed primarily for use as loungewear to be worn in and around the home. Specifically, the hood and drawstring on style F296, the button down collars and reinforced fabric around the collar, rear yoke and front placket on style F294S are styling features generally found on outerwear garments. These features contradict the claim that these garments are sleepwear. It is your position that the shirt collar feature is common to the sleeveless shorty sleepwear style on which the flannel pajamas are modeled. While the presence of a shirt collar alone will not eliminate a garment from classification as pajamas, it is the combination of the features that lead us to the conclusion that the garments are designed primarily for use as loungewear. See, HRL 085673, dated October 29, 1989, where we dealt with the classification of a women's two piece garment. The upper of this garment had a full front opening with a placket secured by seven buttons, a pointed collar, with a collar band, short sleeves with turned up cuffs, a single breast pocket, a double ply rear shoulder yoke and a rounded shirttail hemline. The short pants had an elasticized waistband. This garment was classified in heading 6206, HTSUS and 6204, HTSUS, and not in heading 6208, as pajamas. We noted that the garments were not comfortably sized and were not really loose fitting, nor was the fabric such that wear as intimate apparel would be the only appropriate use.

Moreover, counsel has enclosed samples of garments purchased in the sleepwear department of two department stores in support of their position that the subject garments constitute
recognizable sleepwear garments. The first style is a two piece flannel garment with a sleeveless top and short bottoms. The second garment is a two piece non-flannel garment that resembles style F294S. This garment has a hang tag that states "Earth Angels" and depicts a nightshirt floating over a meadow full of sheep on one side and a poem on the other side.

Customs will take into account evidence of how certain articles are being treated in the industry, however the articles must be the same as those under consideration. See, HRL 951754, dated June 25, 1992. While the garments counsel purchased are similar to the garments at issue here, there are some differences. For example, the upper portion of the first garment described above lacks some of the features of style F294S, such as the pointed collar, the reinforced yoke, etc. The second two piece garment is not made from flannel material and neither of the garments have hoods. In addition, other than the fact that these were purchased in the sleepwear department of two department stores, which as stated above is not dispositive of classification, there is no further evidence that these garments are in fact marketed, designed and sold as sleepwear.

Moreover, counsel cites two cases to demonstrate that direct advertising on a garment is determinative of its classification. In HRL 951184, dated June 19, 1992, which dealt with the classification of women's teddies, the issue was whether the teddies were classified as nightwear or as articles similar to underwear in heading 6208, HTSUS. We determined upon physical examination of the samples that the teddies possessed physical characteristics which rendered them equally suitable for use as sleepwear and as daywear. Therefore, we examined counsel's submitted evidence. Among the evidence was documentation with regard to the marketing, sale and use of these garments. For example, on each price tag there was language which identified the garment as a "DAYWEAR TEDDY". We stated that this was persuasive evidence of how the garment was to be used. Moreover, in HRL 954074 dated June 11, 1993, we dealt with the classification of men's boxer shorts. One of the samples featured a label that stated "Your Guarantee of Sleeping Comfort". As the shorts possessed features rendering then suitable for use as either underwear or sleepwear, the marketing of the merchandise bore directly on the issue of principal use.

In both cases described above, the garments were multiple use garments suitable for use as either underwear or sleepwear and the extrinsic evidence was used to help determine classification. In the instant case, we have determined that the physical characteristics of the garments support a classification of the garments as other than sleepwear. Therefore, where the physical attributes of the garment do not lend support to the claim that the garment is sleepwear, neither advertising nor
marketing alone will be considered conclusive enough to substantiate classification for tariff purposes. Thus, the garments at issue are not classifiable as pajamas in heading 6208, HTSUS. The top portions of the garments are classifiable in subheading 6211.32.0080, HTSUS, and bottom portions are classifiable in subheading 6204.62.4055, HTSUS.


The protest is denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in the ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.


John Durant, Director

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