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HQ 958594




January 26, 1996

CLA-2 RR:TC:TE jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4050; 6203.42.4015

Mr. William A. Vollmerhausen
Kmart Corporation
3100 West Big Beaver Road
Troy MI 48084-3163

RE: Classification of men's woven cotton garments; garments have features of multi-purpose garments; lack of convincing marketing material; loungewear, heading 6203, HTSUSA

Dear Mr. Vollmerhausen:

This is in reply to your letter, dated September 26, 1995, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUS), of men's woven cotton garments, imported from Taiwan. Samples were provided to this office for examination.

FACTS:

The subject merchandise consists of two styles of men's lower body garments. Style number 4220 is a pair of men's woven flannel cotton shorts. The shorts have a fully elasticized enclosed waistband, a fly front with one button closure and side seam pockets. A two inch band of fabric is sewn on the leg bottoms. The fly front does not break the waistband.

Style number 4296 is a pair of men's woven flannel cotton pants. The pants feature a fully elasticized enclosed waistband, side seam pockets and hemmed leg bottoms. The pants lack a fly front opening.

In your opinion these garments should be classified as men's sleepwear garments. In support of this claim you submitted some advertising material showing how the garments are worn and marketed.

ISSUE:

Whether the subject merchandise is classifiable as men's sleepwear in heading 6207, HTSUSA, or as men's loungewear in heading 6203, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

Heading 6207, HTSUSA, provides for, among other things, men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles. In determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade. In Mast Industries, Inc. v. United States, (hereinafter Mast), 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986) the Court of International Trade dealt with 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 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.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), (herein Guidelines), state that "the term ‘nightwear' is interpreted as meaning ‘sleepwear' so that certain garments worn in bed in the daytime..., are included". The Guidelines indicate that besides pajamas, other nightwear includes various articles worn for sleeping. Classification of garments as sleepwear is based upon use. In this regard, Additional U.S. Rule of Interpretation 1(a) 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.

Heading 6203, HTSUSA, provides for, among other things, men's or boys' trousers and shorts. In classification, the most persuasive evidence is the garment itself. The court in Mast citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963), pointed out that "the merchandise itself may be strong evidence of use." In the instant case, a physical examination of style numbers 4220 and 4296 reveals several features which are incongruous with classification as men's pajamas. We believe these garments are multi-purpose garments that may best be characterized as "loungewear". Nothing in the construction or styling of the garments makes them especially suitable as sleepwear or indicate that they would principally be used as such. For example, on the shorts (style number 4220) features such as the fly front with substantial one button closure and side seam pockets would detract from classification of the garment as sleepwear. Similarly, on the pants (style number 4296) the lack of fly and the presence of side seam pockets, would support classification as loungewear. 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. See also HQ 958254, dated October 2, 1995, HQ 957237, dated February 6, 1995, and HQ 956507, dated October 11, 1994, wherein Customs classified similar garments which featured side seam pockets, a fly front with button closure or no fly, in the provision for outerwear garments and not as pajamas.

In support of your claim that these garments are to be classified as sleepwear you submitted documentation to show the garments are marketed as sleepwear to be worn to bed. This office is of the opinion that the advertising and internal documentation submitted by you does not substantiate your claim. The documentation refers to the garments as men's flannel "loungewear"; nowhere are they referred to as sleepwear. Similarly, the pictures are not dispositive that these garments are to be worn to bed (See, e.g., HQ 957809 and HQ 957810, dated June 21, 1995, wherein men's woven flannel shorts and pants were classified as sleepwear based on convincing marketing information). Accordingly, when viewing the garments together with the additional information provided regarding the marketing, Customs is of the opinion that these garments will not be principally used as sleepwear. They are multipurpose garments and are properly classified as men's shorts and pants in heading 6203, HTSUSA.

HOLDING:

Style number 4220 is classified in subheading 6203.42.4050, HTSUSA, which provides for, among other things, men's or boys' trousers, bib and brace overalls, breeches and shorts: of cotton: other; other; shorts: men's. The applicable rate of duty is 17.6 percent ad valorem and the quota category is 347.

Style number 4296 is classified in subheading 6203.42.4015, HTSUSA, which provides for, among other things, men's or boys' trousers, bib and brace overalls, breeches and shorts: of cotton: other: other; trousers and breeches: men's: other. The applicable rate of duty is 17.6 percent ad valorem and the quota category is 347.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and 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

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