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HQ 962396

April 5, 2000

CLA –2 RR:CR:TE 962396 RH


TARIFF NOS.: 6105.10.0010; 6103.42.1050

Area Port Director
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest Number 1001-98-102991; sleepwear; loungewear

Dear Sir:

This is in reply to your memorandum of November 25, 1998, forwarding the Application for Further Review of Protest (AFR) number 1001-98-102991 to our office for review.

The law firm of Grunfeld, Desiderio, Lebowitz & Silverman, LLP, timely filed the AFR on behalf of State-O-Maine, Inc., against a Notice to Redeliver. The notice challenges Customs classification of the merchandise.

Initially we note that Customs ACS records verify that the entry in question automatically liquidated, as entered, on April 23, 1999. A bulletin notice for the liquidation of this entry was published on the same day.

Title 19, United States Code, section 1514 (19 U.S.C. §1514) states that, except for certain specific situations which are listed (voluntary reliquidations under section 1501; petitions by domestic interested parties as defined in section 1677(9)(C), (D), and (E); refunds of errors as defined in section 1520; and fraud as covered by section 1521), decisions of a Customs officer in liquidating entries shall be final and conclusive on all persons, "including the United States...."

It is also obvious when reading the pertinent statutes that Congress resolved to make the liquidation of an entry final and binding on all parties at a definite point in time. Title 19, United States Code, section 1501 (19 U.S.C. §1501), provides that any entry may be reliquidated within 90 days of the date of liquidation, either voluntarily by the Customs Service or as the result of an action or protest by the importer. Headquaters Ruling Letter (HQ) 222982, dated July 1, 1991.

Since Customs failed to reliquidate the entry within the time prescribed by statute, the liquidation on April 23, 1999, is final and conclusive, and the classification issues raised in this protest are moot. Nevertheless, we will address the issues raised in this protest in the event the same garments are imported in the future or have been imported and those entries are reachable.


On April 30, 1998, the protestant entered men’s cotton knitted tops and bottoms into the United States under subheading 6103.42.1050 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as pajamas. The merchandise was conditionally released from Customs custody on the same day. Garments entered under that tariff provision require a textile visa for category 351.

The imported garments include three tops, style numbers 725254, 725258 and 725262. The tops feature short sleeves, a rib knit Henley neckline, exposed overlock stitching, a hemmed bottom and a partial front opening with a three button closure.

The bottoms, style numbers 725255, 725259 and 725263, feature a covered elastic waistband, side-seam pockets, a hemmed bottom and a fly with a one-button closure.

Styles 725254, 725255, 725258 and 725259 are constructed of 100 percent cotton fabric. Styles 725262 and 725263 are constructed of 70 percent cotton and 30 percent polyester fabrics. Manufacture of the garments occurred in Turkey as part of the protestant’s “private-label” program for such retailers as Dillard’s and Sears.

On May 11, 1998, Customs issued a Notice to Redeliver the garments. The notice reads, in relevant part:

Merchandise found to be misclassified. Merchandise should [be] classified as tops and bottoms requiring visas for categories 338 and 347 respectively.


What is the correct classification of the merchandise?


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. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied in their appropriate order.

Classification of garments as sleepwear is based upon use. Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that in the absence of special language or 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.

In determining the classification of garments submitted to be sleepwear, Customs considers factors discussed in several decisions by the Court of International Trade (Ct. of Int’l Trade). In Mast Industries. Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (Ct. App’ls for Fed. Cir. 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 Ct. Int’l Trade 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.

Additionally, as the court pointed out in Mast, “the merchandise itself may be strong evidence of use”, Id. at 552, citing United States v. Bruce Duncan Co. 50 CCPA 43, 46, C.A.D. 817 (1963), and Customs has adopted that view as the crucial factor in the classification of a 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. In International Home Textile. Inc. v. United States, Ct. Int’l Trade Slip. Op. 97-31, dated March 18,1997, aff’d 153 F. 3d 1378 (Ct. App’Is for Fed. Cir. 1998), the Court of International Trade 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). 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, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc. It is important to note that 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.

Thus, when ruling on similar merchandise Customs policy has been to carefully examine the physical characteristics of the garment in question. When this has not proven substantially helpful, we consider other extrinsic evidence 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, i.e., 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 factor 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 v. United States, 16 Ct. Int’l Trade 407 (1992).

In the instant case, we examined the sample garments to determine if their use as sleepwear or outerwear is apparent. We found nothing about the tops’ styling, fabric, cut, or construction, which indicate that they are designed primarily for sleeping. In our opinion, the tops are, without a doubt, outerwear garments and are typical of the type of garments worn at informal social occasions and for the other nonprivate activities discussed in International Home Textile.

In examining the physical characteristics of the bottom garments at issue, their use as sleepwear or loungewear is not as apparent. For example, the one button fly contributes to the ambiguous nature of the garment, although we find that it provides substantial closure and does not raise modesty concerns. On the other hand, the bottoms have a covered waistband and side seam pockets, which are features typical of outerwear garments. See, HQ958594, dated January 26, 1996, wherein we stated:

Simply put, there is no need for side-seam pockets on garments that are primarily to be used as pajamas. Pockets such as these however are a common feature on men's shorts and pants and the wearer would likely find them useful while lounging at home or wearing these garments as a casual mode of outerwear dress. Additionally, the presence of the fly front with substantial one button closure on the shorts, and the lack of fly on the pants provide the type of coverage that would enable the garments to be worn as outerwear.

Accordingly, we find that the bottoms are similar to other outerwear garments. This is particularly true when we consider the bottoms are imported to be worn with the tops, which are indisputably outerwear, as mix and match coordinates.

Since the garments themselves are potent witnesses, we are not persuaded by the advertising and marketing material you submitted in support of your claim that the tops are sleepwear. We note, however, that the Customs National Import Specialist for this commodity 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 and 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, is an article supplied by the NIS from the Dailey News Record, dated August 28,1995, on loungewear. It reads, in part:

Loungewear makers, whose products can be worn for play, sleep or just hanging around, see flexibility in terms of distribution as the best channel for growth.

Based on the foregoing, style numbers 725254, 725258 and 725262 should be classified under subheading 6105.10.0010, HTSUSA, as men's knitted cotton shirts. Style numbers 725255, 725259 and 725263 should be classified under subheading 6103.42.1050, HTSUSA, as men's cotton shorts.


Since the entry covered by this protest against the Notice to Redeliver has been liquidated and the liquidation that occurred on April 23, 1999, is final and conclusive, nothing can be done to reliquidate that entry in accordance with this decision. However, this decision should be applied to any future importations of this merchandise, any unliquidated entries of this merchandise and any current protests which have been suspended waiting our decision in this case. In order to close the ACS record in the protest module, this protest should be DENIED. Further, the Notice to Redeliver should be cancelled.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 30 days from the date of this letter.

Thirty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel, and to the public on the Customs Home Page of the World Wide Web at www. customs. gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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