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HQ 957862




December 21, 1995

CLA-2 RR:TC:TE 957862 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010; 6207.21.0010

Donna L. Shira, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-seven Broad Street
New York, NY 10004

RE: Classification of men's woven flannel sleep pants and tops; Heading 6207; Heading 6203; Heading 6205

Dear Ms. Shira:

This is in response to your inquiry of April 24, 1995, requesting a tariff classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), on behalf of your client Calvin Klein Underwear Division Warnaco, Inc., concerning men's garments. Samples were submitted for examination.

FACTS:

The garments at issue consist of a men's upper-body garment, Style U7133/U7153, and a matching men's lower body garment, Style U7130/U7131. The garments are constructed of woven 100 percent cotton flannel fabric. Style U7133/U7153 is a loose-fitting upper body garment sized in small, medium, large and x-large. The article also contains a rounded V-neck extending into a full frontal opening with a five-button means of closure, a large left breast pocket embroidered with the "CK" trademark design, wide three-quarter length sleeves, and a straight bottom hem. Style U7130/U7131, loose fitting bottoms, contain a twill tape waistband through which a cotton twill drawstring is threaded, a button fly, side seam pockets, a rear pocket, and extra long legs.

In a meeting at Customs Headquarters a company representative as well as counsel for the importer conferred with Customs attorneys and submitted extensive advertising and marketing data professing that the subject garments are designed, marketed, and sold as sleepwear.

ISSUE:

Whether the subject merchandise is classifiable as sleepwear under Heading 6207, HTSUSA, or as outerwear garments under Heading 6205, HTSUSA, and Heading 6203, HTSUSA?

LAW AND ANALYSIS:

Heading 6207, HTSUSA, provides for, among other things, men's nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two piece garments worn for sleeping. One piece garments used for sleeping may be classifiable as pajamas, but such garments cover the entire torso. Other one piece garments used for sleeping are not classifiable as pajamas; instead they fit into a residual provision within Heading 6207, HTSUSA, for similar articles. Garments classifiable in this residual provision include sleep shorts and sleep pants.

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases that dealt with sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 144 (CAFC, April 1, 1986), the Court of International Trade considered the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster's Third New International Dictionary which defined "nightclothes" as "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 support of your claim that these garments are sleepwear and should be classified as sleepwear under Heading 6207, HTSUSA, you emphasize that these garments will be purchased by major department stores in their underwear/sleepwear sections. You state that the garments are designed for wear to bed due to the lightweight flannel fabric and the loose, roomy construction. You state that a Calvin Klein Underwear marketing description used for soliciting customers for these garments, describes them as "flannel pajamas". You have submitted pictures depicting the subject merchandise in the underwear/sleepwear department in several different retail stores. You have also submitted purchase orders which identify the subject garments as articles belonging to the sleepwear/underwear departments of the manufacturer.

As stated in Mast, "most consumers tend to purchase and use a garment in the manner in which it is marketed." You maintain that these garments are marketed as sleepwear and have submitted documents supporting this claim. Although the garments possess features not generally associated with men's sleepwear bottoms, such as the side-seam pockets and the rear pocket with button closure, they also possess features such as the overall styling of the garment and the fabric construction which are associated with sleepwear. The tops at issue contain three-quarter length sleeves commonly found in sleepwear garments, are loose-fitting, and are sized small, medium, large, and extra-large. These are all attributes routinely found in garments worn for sleeping. When viewing these characteristics with the additional information provided regarding the marketing, Customs agrees that these garments will be principally used as sleepwear and are classifiable under Heading 6207, HTSUSA. Consequently, an analysis of the subject garments' classification under Headings 6203 and 6205, HTSUSA, is not required.

You state in your submission that retail stores intend to offer the garments for sale either as a pajamas ensemble or with just the pajama bottoms being sold. Thus, in some instances, an equal number of tops and matching bottoms are sold and in other situations, retailers are buying more bottoms than tops. It is important to note that if the matching tops and bottoms are imported together in equal numbers, they will be classified as pajamas under Heading 6207, HTSUSA. If however, unequal numbers of tops and bottoms are imported together, the odd tops or bottoms without a matching piece will be classified in the residual subheading under Heading 6207, HTSUSA, for similar articles.

HOLDING:

Based on the foregoing, if Style U7133/U7153 and Style U7130/U7131 are imported separately or as extra tops or bottoms without matching pieces, they will be classified in subheading 6207.91.3010, HTSUSA, which provides for men's sleepwear garments similar to pajamas and nightshirts. The applicable rate of duty is 6.5 percent ad valorem and the textile restraint category is 351. If the subject garments are imported together in equal numbers of matching tops and bottom, they will be classified in subheading 6207.21.0010, HTSUSA, which provides for men's cotton woven pajamas with two or more colors in the warp and/or the filling. The applicable rate of duty is 9.4 percent ad valorem and the textile restraint category is 351.

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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification

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