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HQ 959843

May 6, 1998

CLA-2 RR:CR:TE 959843 ASM


Tariff No.: 6108.32.0010

Ms. Nancy Fife
Manager, Import Costs
Sears Roebuck and Co.
3333 Beverly Rd., BC 217A
Hoffman Estates, Illinois 60179

RE: Revocation of PD A83049 and NY A84529 Concerning Women's Knit Garments; Nightwear vs. Outerwear

Dear Area Director:

This letter concerns the revocation of Port Director Ruling (PD) A83049, May 14, 1996, and New York Ruling (NY) A84529, July 5, 1996, concerning the classification women's pullovers and dresses.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of PD A83049 and NY A84529 was published on March 25, 1998, in the Customs Bulletin, Volume 32, Number 12.


Style 74998 is a woman's pullover of 65 percent polyester and 35 percent cotton knit fabric, fully napped inside. The garment is 36 inches long and has a ribbed crewneck, long sleeves with ribbed cuffs, shirttail bottom, as well as appliques on the chest which depict a cap, owl, and snowflake along with the words "a cold winter's night." In Ruling PD A83049, Customs determined that the item was properly classifiable under subheading 6110.30.3055, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which is the provision for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, of man-made fibers, other, women's or girls.

Style LT-1044 is also designed as a woman's pullover and is constructed of 65 percent polyester and 35 percent cotton knit fabric, fully napped inside. The length is somewhat longer at 48 inches; however, in all other respects, it is identical to Style 74998, described above. In NY A84529, Customs classified the item under subheading 6104.43.2010, HTSUSA, the provision for women's dresses, knit, of synthetic fibers, other.

It is Sears position that both items should be classified as women's knit nightdresses, of man-made fibers under subheading, 6108.31.0010, HTSUSA. Sears contends that the nightshirts would be designed, displayed, and sold in the nightwear/robe/loungewear area of the intimate apparel section of Sears stores. Sears also states that similar articles are advertised and described as "novelty loungers and sleepshirts" in their promotional literature.


Whether the proper tariff classification under the HTSUSA for these women's garments is under the provisions for women's knit pullovers and dresses or the provision for women's knit nightdresses.


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order. The Explanatory Notes to the HTSUSA (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

In order to determine whether or not the garments are sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade. In Mast Industries, Inc. V. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986) the Court dealt with the classification of a garment claimed to be sleepwear and cited Webster's Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed." In Mast, the court ruled that the garments at issue were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear. Similarly, in St. Eve International, Inc. V. United States, 11 CIT 224 (1987), the court ruled that the garments at issue were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear.

As noted in Customs Headquarter's Ruling (HQ) 957004, November 23, 1994, Customs will typically look to the garment itself as the crucial factor in classifying the merchandise. However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear, 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. These factors are considered in totality and no single factor is determinative of classification, as each of these factors viewed alone may be flawed. Such was the case in Regaliti, Inc. V. United States, 16 CIT 407 (1992), wherein the court upheld Customs classification of the goods as "pants" and viewed plaintiff's characterization of the items as "tights" as self-serving stating that "To avoid pants quota limitations plaintiff must refer to the items as tights'."

In the recent case of International Home Textile, Inc. V. United States, Slip Op. 97-31, March 18, 1997, the Court of International Trade addressed the issue of whether certain men's garments were properly classified under the provision for cotton pants, shorts and tops or as sleepwear under the HTSUSA. The court held that in order to be classified as sleepwear, certain loungewear items must share that essential character of being for a "private activity", e.g., sleeping. The court also stated that garments classified as sleepwear would be inappropriate for use at "... informal social occasions in and around the home, and for other individual, non-private activities in and around the house e.g., watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like."

The garments in question are of a rather heavy sweatshirt type fabric with fleece on the inside which some may find uncomfortably hot for sleeping. However, the design is that of a large over-sized nightshirt with a shirt-tail effect at the hem and ample stretch and roominess in the collar, shoulder, sleeves, and body of the garment. It is our understanding that the garments are not intended to be paired with matching or coordinating leggings/pants/shorts. Although, the subject garments could be used for private activity inside the home, it is not likely that they would be used for informal social occasions in and around the house because the garment design strongly suggests it's use as a nightshirt. In addition, Sears has submitted advertising information which suggests that the garments in question are to be promoted as sleepwear. According to Sears, these items will be displayed and sold in the nightwear/robe/loungewear area of the Intimate Apparel section of Sears stores. Thus, it is our determination that these garments have the essential character of being for the private activity of sleeping.


The womens' garments identified as Style 74998 and LT-1044, are classifiable under the provision for "Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightdresses and pajamas: Of man-made fibers; Women's", subheading 6108.32.0010, HTSUSA, and are dutiable under the general column one rate at 16.6 percent ad valorem. The textile category for this provision is 651.

The importer should be advised that due to the changeable nature of the statistical annotation (the ninth and tenth digits of the tariff number) and the restraint (quota/visa) categories, he or she 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 renegotiations and changes, to obtain the most current information available, we suggest that you 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 your local Customs office.

PD A83049 dated May 14, 1996, and NY A84529 dated July 5, 1996, are hereby revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).


John Durant, Director
Commercial Rulings Division

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