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HQ 956351

July 7, 1994

CLA-2 CO:R:C:T 956351 CMR


TARIFF NO.: 6106.10.0010; 6104.62.2010

William Maloney, Esq.
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Classification of certain women's knit garments; loungewear; sleepwear v. outerwear; 6108, HTSUSA, 6104, HTSUSA, 6106, HTSUSA

Dear Ms. Kelly-Kobayashi:

This is in response to your letter of April 29, 1994, on behalf of Eddie Bauer, Inc., requesting a classification ruling for certain women's knit garments which will be manufactured in Hong Kong and imported through the ports of Seattle, Chicago and/or Columbus. You claim these garments are classifiable as sleepwear garments and have submitted arguments, various documents, and sample garments to substantiate your claim.


The submitted samples are style 7013--a waffle knit shirt, and style 7012--waffle knit ankle-length pants. Both garments are made of 100 percent cotton thermal (waffle) knit fabric. Style 7013 has long sleeves with rib knit cuffs, a straight hemmed bottom with side vents, and a scoop neck with a partial opening at the front secured by three buttons.

Style 7012 feature a fully elasticized self-fabric covered waistband, a fly opening secured by four buttons, no pockets, and rib knit cuffs.

In support of your claim these garments are properly classified as sleepwear, you state that these garments are being purchased by your client for sale in its 1994 Holiday catalogue. The garments will be displayed in the section of the catalogue dedicated to bathrobes, pajamas, nightgowns and slippers and will be described as "thermal pajama top" (style 7013) and "thermal pajama pants" (style 7012). The garments will be sold as -2-
separates. A copy of Eddie Bauer's 1993 Holiday catalogue was submitted to demonstrate how these garments will be displayed in the 1994 Holiday catalogue and the type of copy that will accompany the photographs of the garments. Additionally, you submitted several catalogues to show how other companies are marketing similar goods and the use of the concept of marketing as separates garments generally thought of as being sold as one unit. The submitted catalogues include the Eddie Bauer 1994 Mother's Day catalogue, a Land's End Holiday catalogue, and the J.Crew 1994 Christmas catalogue.

You have submitted a copy of your client's listing of merchandise departments and pointed out that department 045 is the sleepwear department and that is the department which purchases these garments.

At a meeting at our offices on June 22, 1994, a member of your firm supplied us with advance copies of the planned artwork for the catalogue advertising the rib knit style separates, styles 7008 and 7009. We were informed at that meeting that artwork for the waffle knit garments at issue is unavailable, but we assume they will be similarly marketed and advertised. We have taken into consideration all of the information supplied in relation to this case. In addition, we have considered information submitted with file number 956350, a related case.


Are the garments at issue, styles 7013 and 7012, described as thermal pajama top and thermal pajama pants, properly classified as outerwear in headings 6106 and 6104, HTSUSA, or are they classifiable as sleepwear garments of heading 6108, HTSUSA?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade which are often cited when discussing sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986) the Court of International Trade dealt with the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster's Third New International Dictionary's which defined "nightclothes" as -3-

"garments to be worn to bed." In Mast, the court determined that the garment at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear.

In contrast, the Court of International Trade disregarded claims regarding marketing and advertising in Regaliti, Inc. v. United States, Slip Op. 92-80, which dealt with the classification of garments known as leggings which were classified as pants by Customs and claimed by the importer to be classifiable as tights. In upholding Customs classification of the goods as pants, the court stated:

Plaintiff's fashion merchandising experts testified that these items were "tights," and plaintiff advertises them as The court is not highly persuaded by plaintiffs invoices or advertising calling the items "tights." To avoid pants quota limitations plaintiff must refer to the items as "tights."

In past rulings, Customs has stated that the crucial factor in the classification of a garment is the garment itself. As the court pointed out in Mast, "the merchandise itself may be strong evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti. Slip-Op. 92-80. We have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outerwear. See, HRL 955341 of May 12, 1994 and rulings cited therein; HRL 952105 of July 1992; HRL 085672 of October 29, 1989; and HRL 955088 of December 14, 1993. With these points in mind, Customs has reviewed your claim that these garments are classifiable as sleepwear and we are unpersuaded.

When considered with the other information presented, Customs does not find the descriptions of the garments at issue as thermal pajama top and thermal pajama pants or the fact that they are ordered by the sleepwear department of particular significance. What we do find of importance is the garments themselves and the manner in which they will be presented to the public.

One of the arguments presented to support the claim that these garments are sleepwear is that they will be advertised in the Eddie Bauer catalogue as a sleepwear group consisting of pajama separates. In your submission you state this sleepwear group will also include a thermal knit nightgown and one-piece pajama or sleepsuit which were the subject of DD 897199 of May 20, 1994, in which the nightgown and sleepsuit were classified as sleepwear of heading 6108, HTSUSA.

You have argued that presentation in a catalogue precludes any ambiguity as to the intended use of a garment because the consumer has only the description in the catalogue upon which to rely in deciding what a garment is and how it is to be used or worn. While it is true that such a presentation may reduce the likelihood of ambiguity regarding a garment's intended use, it is also true that simply identifying a garment as a "pajama" does not, in and of itself, mean that it is sleepwear.

The term "pajamas" is defined in Charlotte Mankey Calasibetta's Essential Terms of Fashion at 128, in relevant part, as:

One- or two-piece item of apparel originally designed for sleeping; later for lounging; and in the late 1960s for entertaining, evening parties, and dining out. * * * Popular for lounge- and beachwear in the late 1920s and 1930s. * * * [emphasis added].

The same source includes definitions for specific types of pajamas including:
culotte p. Floor-length pajamas with wide legs, resembling a long dress, worn for dining in mid and late 1960s and early 1970s. Also called hostess culottes. Also see CULOTTES under PANTS and SKIRTS. [emphasis added].
lounging p. Full-length pajamas cut in tunic or one-piece style. Legs are side and long that give the appearance of a skirt when not in motion. Introduced in the 1930s and used for lounge- and beachwear. Reintroduced in mid-1960s for evening or at-home wear. [emphasis added].

Mary Brooks Picken's The Fashion Dictionary defines pajamas (at 264) as:

Suit consisting of coat or blouse and trousers. Worn for sleeping, lounging, beach wear, depending on the style and fabric; more formally, for afternoon and evening wear at home. Originally, ankle-length trousers worn by natives of India, Persia, etc.

From the above cited definitions, it is clear that garments which are called "pajamas" may be sleepwear, loungewear, beachwear or streetwear.

As stated at the beginning of this discussion, the court in Mast, 9 CIT 552, defined nightwear as "garments to be worn to bed." In determining if a garment is classifiable as a sleepwear garment, Customs must look to its principal use and whether the subject garment is principally worn to bed.

Two Eddie Bauer 1993 Holiday catalogues were submitted to demonstrate how the subject garments will be displayed in the 1994 Holiday catalogues. We note, however, that the garments displayed in the 1993 catalogues are not ambiguous in nature. They are clearly sleepwear garments and the advertising copy reinforces that message with comments including:

Warm and soft, these flannels are as comforting as a good night's sleep.

Wrap up a gift of exceptional softness: give Eddie Bauer flannel sleepwear.

We do not regard the 1993 Holiday catalogues as relevant to the garments before us, as the garments advertised therein differ significantly from the garments at issue here.

Of greater importance and directly relevant is the planned artwork and advertising copy for the rib knit separates. The advertising copy for the rib knit separates clearly identifies the garments advertised as follows: style 7008--knit pajama top, style 7009--knit pajama pants, and style 7004--knit nightshirt. However, the headline at the top of the page states:

Relax all morning--or all day--in the softness of Eddie Bauer loungewear.

The copy goes on to describe the garments again as loungewear and states: "Our pajamas are made to wear in every room of the house, any time of day." As the court noted in Mast, at 551, "most consumers purchase and use a garment in the manner in which it is marketed." In our view, these garments are clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are presented as multi- purpose garments and, in fact, with the exception of the use of the terms "pajama" and "nightshirt" in describing the goods, nothing else in the advertising copy suggests the garments are designed or intended for wear while sleeping. While it is argued that the garments at issue herein "are designed, manufactured and will be marketed . . . as garments to be worn to bed", the actual marketing is not available. As we assume the thermal knit separates will be advertised in a manner similar to that of the rib knit separates, Customs does not agree that these garments will be presented to consumers as sleepwear garments; they will be held out as casual loungewear.

In addition, the Victoria's Secret's 1994 Summer Collection catalogue offers garments extremely similar to the thermal knit separates before us. On page 34 of the catalogue, photograph "A" is a model wearing thermal knit pajamas. The copy for the garments reads:

Thermal knit pyjamas, designed for lounging.

The garments in the Victoria's Secret catalogue differ slightly in styling from the garments at issue and differ in that they are sold as pajamas consisting of top and bottom garments and not as pajama separates which is the instant case. However, they appear to be made of the same type of thermal (waffle) knit fabric and they are clearly held out to be loungewear, not sleepwear.

You have argued that the physical characteristics of these garments make them suitable for sleepwear and that they are designed, manufactured and will be marketed as sleepwear. However, marketing for the specific garments at issue is unavailable. Marketing of extremely similar garments by another company advertises those garments as loungewear. Artwork for the rib knit style separates shows they will be advertised as loungewear. In regard to the physical characteristics, you state that the physical characteristics of the garments make them suitable and comfortable for sleeping and:

The design of these garments, particularly the ribbed knit cuffs and the button fly front on the pants are incompatible with use as outerwear. The garments lack the more attractive, tighter lines usually associated with knit pants and tops which are presently fashionable. -7-

In our view, styles 7013 and 7012 do not appear to be clearly sleepwear garments. In fact, the styling of the garments and the type of fabric used in their construction is suggestive of casual clothing or leisure wear. Our concern in determining their classification goes beyond suitability for use as sleepwear to whether the garments will be primarily or principally used as sleepwear. Additionally, we cannot allow ourselves to be limited by current fashion as fashion is constantly changing. Tight knit pants may be the fashion of today or perhaps the fashion of the past two or three years. Loose knit pants may be the coming trend.

In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade discussed the use of garments in determining their classification. In this regard, the court stated:

The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function. Trans- Atlantic Co., v. United States, 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973). Hampco, 12 CIT 92, 96.

Taking into consideration all of the information before us, especially the garments themselves, Customs believes these garments, styles 7013 and 7012, belong to a class of garments known as loungewear or leisurewear. These garments are multiple use garments and are not designed and marketed for the principal or primary use of wearing to bed for sleeping, though they may be used for that purpose. Customs believes these garments are properly classified as outerwear garments, not as sleepwear.


Style 7013, thermal knit pajama top, is classifiable as a women's cotton knit shirt in subheading 6106.10.0010, HTSUSA, textile category 339, dutiable at 21 percent ad valorem.

Style 7012, thermal knit pajama pant, is classifiable as women's cotton knit pants in subheading 6104.62.2010, HTSUSA, textile category 348, dutiable at 16.7 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we -8-
suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your 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, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director
Commercial Rulings Division

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