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HQ 954350


July 30, 1993

CLA-2 CO:R:C:T 954350 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4250

Peter Weinrauch
Import Commodity Group Ltd.
156-15 146th Avenue
Suite 314
Jamaica, New York 11434

RE: Classification of men's woven cotton shorts; pajamas; sleepwear; underwear; loungewear.

Dear Mr. Weinrauch:

This is in response to your letter of April 13, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of men's woven cotton shorts. A sample was provided to this office for examination.

FACTS:

The submitted sample, style number 5048, is a pair of size medium men's woven cotton shorts. This item features an elasticized tunnel waistband with an exterior drawstring and a button closure at the waist. It has a fly front opening with a two button closure. The shorts possess two side seam pockets and a rear pocket with a button closure. The garment measures approximately 23 inches from the top of the waistband to its hemmed bottom; 13 inches across the relaxed waist; 12 inches across a single leg opening.

You refer to the sample as "pajamas," and state that its "principal use is for the selling of men's woven loungewear, to bed." However, you also aver that the shorts will be "sold by Calvin Klein's men's underwear division," and a label on the garment will read "Calvin Klein Sleepwear."

ISSUE:

What is the proper tariff classification for the instant garment? LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

You have indicated that the instant shorts may be used alternatively as men's loungewear, sleepwear, underwear and pajamas. Men's woven sleepwear, underpants and pajamas are provided for under heading 6207, HTSUSA. In addition, men's woven shorts are classified under heading 6203, HTSUSA.

In Headquarters Ruling Letter (HRL) 951754, dated June 25, 1992, we stated:

The subject merchandise is of a type of garment that is capable of being used for more than one purpose...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.

Therefore, we will first look to the design features of the garment to determine whether it is suitable for use as loungewear, sleepwear, underwear, pajamas or shorts.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, at page 25, state in part that:

The term "underwear" refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of- doors.

The instant article possesses several features which render it unlikely that it will used primarily as underpants. For example, side seam and rear pockets are not features typically found on garments which are worn beneath other garments. Moreover, underpants typically measure less than 23 inches from top to bottom, so that they are not exposed and are comfortable when worn underneath other articles of clothing. Finally, a multi- button closure and an enclosed waistband are not features normally associated with underpants. Accordingly, we conclude that this article is not classifiable as men's underwear.

The Guidelines, at page 24, provide, in pertinent part, 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. (Emphasis added).

Based upon this language and other lexicographic sources, we have determined that pajamas are normally two-piece sets which provide upper and lower body coverage. See HRL 088635, dated May 24, 1991. In this case, the merchandise is sold individually and provides only lower body coverage. Hence, it is not classifiable as pajamas.

The Guidelines also state, at page 24, that:

The term "nightwear" is interpreted as meaning "sleepwear" so that certain garments worn in bed in the daytime, as by infants over 86 centimeters in height and the bed-ridden, are included. (Emphasis added).

Similarly, in Mast Industries v. United States, 9 CIT 549, the court concluded that the definition of nightclothes is "garments worn to bed." Although the instant shorts may be worn to bed, we conclude that it is a multi-purpose garment. Our examination of this article leads us to the conclusion that it has been designed primarily for use as loungewear to be worn in and around the home. In point of fact, this item could also be worn out-of- doors. As this article has not been designed primarily for use in bed, we conclude that it is not classifiable as sleepwear despite the fact that it may be advertised as such. See HRL 951032, dated May 7, 1992 (men's knit shorts for lounging or other activities around the home not classifiable as sleepwear).

Heading 6203 provides for men's woven shorts. The provisions of the Explanatory Note (EN) to heading 6103 apply, mutatis mutandis, to heading 6203. The EN to heading 6103, at pages 834-835, provides in part that:

"Trousers" means garments which envelop each leg separately, covering the knees and usually reaching down to or below the ankles; these garments usually stop at the waist; the presence of braces does not cause the garments to lose the essential character of trousers.

"Shorts" means "trousers" which do not cover the knee.

As the instant article meets the criteria for shorts, and is not more specifically described elsewhere in the Nomenclature, it will be classified pursuant to heading 6203.

HOLDING:

The subject merchandise is classifiable under subheading 6203.42.4050, HTSUSA, which provides for men's woven cotton shorts. The applicable rate of duty is 17.7 percent ad valorem. The textile quota 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 the subject of frequent negotiations 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 the 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 the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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