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HQ 961036

April 27, 1998

CLA-2 RR:CR:TE 961036 RH


TARIFF NO.: 6105.10.0010; 6103.42.1020; 6103.42.1050

Patrick D. Gill, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Request for ruling on the classification of garments from El Salvador; sleepwear; loungewear; heading 6103; heading 6105; heading 6107

Dear Mr. Gill:

This is in reply to your letter of June 27, 1997, on behalf of your client, Hampton Industries, Inc., requesting a ruling on the classification of garments manufactured in El Salvador.

You sent three samples of the garments to aid us in our determination.

A member of my staff met with you and Mr. Bob Harris, President of the Hampton Sleepwear Division of Hampton Industries, Inc., on January 30, 1998, to discuss the issues raised in the ruling request.


Three garments are at issue in this case. One is a Henley style top in size "XL." It features a rib knit Henley neckline, a partial front opening with three button closures, long sleeves with rib knit cuffs and a hemmed bottom with side slits and a tail. The next garment is a pair of size "L" short bottoms. They have a tunnel elastic waistband, side seam pockets, hemmed leg openings and no fly. The last garment is a pair of long bottoms. Like the short bottoms, they have a tunnel elastic waistband and side seam pockets. They also have rib knit cuffs at the ankles and no fly.

All of the garments are constructed from 55 percent cotton, 45 percent polyester thermal knit fabric which measures more than ten stitches per linear centimeter counted in both horizontal and vertical directions.

You contend that the garments imported together in shipments containing equal numbers of matching tops and bottoms are classifiable in subheading 6107.21.0010 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as men's pajamas. If imported separately, you state that they are classifiable under subheading 6107.91.0030, HTSUSA, as men's sleepwear.


Whether the garments described above are classifiable as pajamas or sleepwear under heading 6107, HTSUSA, or under headings 6103, HTSUSA, and heading 6105, HTSUSA, as outerwear garments?


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, taken in their appropriate order. Heading 6107 encompasses "Men's or boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted."

Classification of garments as sleepwear is based upon use. Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind of merchandise.

Customs considers factors discussed in several decisions by the Court of International Trade (CIT) in determining the classification of garments submitted to be 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 cited several lexicographic sources, among them Webster's Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed." The court determined that the garment at issue in that case 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 that the garments at issue in that case were manufactured, marketed and advertised as nightwear and were chiefly used as such.

In determining whether a particular garment is to be used for sleepwear, the garment 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). Moreover, "most consumers tend to purchase and use a garment in the manner in which it is sold. Id. However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear, 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 documentation.

Although consideration is given to the way in which merchandise is marketed and sold, 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, Headquarters Ruling Letter (HQ) 955341, dated May 12, 1994, and rulings cited therein; HQ 952105 of July 1992; HQ 085672 of October 29, 1989; HQ 955088 of December 14, 1993. The manner in which an article is sold and marketed is weighed in conjunction with other factors such as the physical characteristics of the garment.

Customs also refers to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), for guidance in determining whether a garment has characteristics of sleepwear. At page twenty-four, the Guidelines state that "the term 'nightwear' means 'sleepwear' so that certain garments worn in bed in the daytime . . . are included."

Garments that are not sleepwear may fall into various fashion categories besides sportswear, including "loungewear" or "leisure wear." Customs has long held that loungewear includes a variety of loose, comfortable casual clothes that can be worn in a variety of settings. See, HQ 082624, dated March 22, 1989.

Moreover, in a recent decision the CIT held that articles encompassed under heading 6107 (underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles) are characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing and dressing). International Home Textile, Inc. v. United States, CIT Slip. Op. 97-31, dated March 18, 1997. The court pointed out that loungewear, on the other hand, may be worn at informal social occasions in and around the home, and for other nonprivate activities such as watching movies with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc. We note the parties stipulated that the garments in International Home Textile were considered "loungewear" and the issue was whether "loungewear" was classifiable as outerwear or as sleepwear. The court found that the garments in that case were primarily used for lounging and not for sleeping. In this case, however, the importer claims that the garments are sleepwear.

You state that the garments at issue are designed, manufactured and marketed by your client as sleepwear/pajamas and are sold to sleepwear buyers. You further submit that the garments are suitable and comfortable for sleeping due to their loose fit and thermal knit fabric. In support of those claims, you submitted a letter from the men's sleepwear buyer at Meijer's confirming that the garments will be marketed and sold in the men's sleepwear department as sleepwear. In addition, you cite three ruling in which Customs classified flannel garments as pajamas or articles similar to pajamas. HQ 956202, dated September 29, 1994; HQ 957757, dated April 11, 1995; NY A81955, dated April 18, 1996.

During the meeting on January 30, 1998, you provided our office with sample purchase orders from Hampton Sleepwear Division. Your client states that Hampton Sleepwear Division only sells sleepwear and has only one type of purchase order, which depicts garments in sizes from "XS" to "4XL." You also gave us pages from a Fall 1997 Hampton Industries catalog depicting mens and boys flannel and thermal "sleepwear coordinates", which look similar to the garments at issue. Finally, you submitted a letter from the buyer of Target Stores' children's underwear and sleepwear departments, which reads:

It is my intent as a buyer of children's sleepwear, that the Thermal and Double Brushed flannel program that you are putting together for us be sold as sleepwear. To this end, the product must meet all CPSC guidelines for children's sleepwear. The product will be merchandised in the sleepwear department, along with all other pajamas.

You also cited HQ 959940, dated July 15, 1996, in which we held that documentation received by our office, i.e., purchase orders, contracts and letters from buyers confirming that the garments are being purchased by their department stores as sleepwear for display in sleepwear departments, was sufficient to classify "borderline" garments as sleepwear as opposed to loungewear. See HQ 959084, dated July 18, 1997.

Customs National Import Specialist provided us with numerous advertising materials which demonstrate that the trend today for the type of garments in question is for mix and match loungewear as shown by the following sampling of the articles we received. For example, in the Fall and Winter J.C. Penny Catalog, garments advertised as cotton an polyester thermal knit loungewear consisting of a Henley style top trimmed with plaid flannel, long pants with no fly and jam shorts with plaid flannel trim on the waistband. A September 1996 Kohl's advertisement featured a Henley style top and a pair of pants with plaid trim on the shirt placket and waistband advertised as loungewear. Pajamas were advertised separately. In an August 1996 target advertisement, as Henley top or V-notch Tee, shorts and pants are sold as mix and match loungewear coordinate.

Even more persuasive that the garments under consideration are loungewear is an article supplied by the NIS from the Dailey New Record, dated August 25 and 28, 1995, on loungewear. It reads:

Loungewear is changing the way men dress at home, after work and on the weekends. Here SLOUCHERS by HAMPTON INDUSTRIES' version of what to wear after-hours - a natural and navy striped cotton pique cross-tie lounge shirt and natural cotton pique lounge shorts.

You also submitted several newspaper advertisements for flannel sleepwear. However, based on our examination of the garments up supplied, we find that they are loungewear, i.e., loose, casual clothes that are worn in the home for comfort. Their fabric, construction and design are suitable for the type of nonprivate activities named in International Home Textile, Inc. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for lounging.


The Henley style shirt is classifiable in subheading 6105.10.0010, HTSUSA. It is dutiable at the general one column rate at 20.5 percent ad valorem, and the textile category is 347.

The pants are classifiable in subheading 6103.42.1020, HTSUSA, and the shorts are classifiable in subheading 6103.42.1050, HTSUSA. Both the pants and the shorts are dutiable at the general one column rate at 16.7 percent ad valorem, and the applicable textile category is 347.

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 internal issuance of the U.S. Customs Service, which 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 importing the merchandise to determine the current applicability of any import restraints or requirements.


John Durant, Director
Commercial Rulings Division

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