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HQ 959209




November 7, 1996

CLA-2 RR:TC:TE 959209 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010; 6207.21.0010

Duncan Nixon, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. 1707 L Street, N.W.,
Washington, D.C. 20036

RE: Classification of men's sleep shorts and tops; Heading 6207; Heading 6203; Heading 6205

Dear Mr. Nixon:

This is in response to your inquiry of April 2, 1996, requesting a tariff classification ruling for men's garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), on behalf of Warnaco Inc. Samples were submitted for examination.

FACTS:

The garments at issue consist of a man's upper body garment, Style U7162 and a matching man's lower body garment, Style U7160. Identical constructed garments in different colors are designated Styles U7158/U7166/U7170/U7174/U7178/U7182/U7186 for the tops and Styles U7156/U7164/U7168/U7172/U7176/U7180/U7184 for the bottoms. All of the articles are constructed of woven cotton fabric measuring 3.74 ounces per square yard. The woven cotton fabric is comprised of multi-colored yarns that form a plaid design. The top is a loose-fitting upper body garment sized in small, medium, large and x-large. The top features a rounded neck extending into a full frontal opening with a six button means of closure, a left breast pocket embroidered with the "CK" trademark design, wide short sleeves, and a straight bottom hem. The loose-fitting bottoms which extend a slightly above the knee of a wearer contain a turned-over waistband with the words "Calvin Klein" in a contrasting color printed repeatedly, a drawstring thread through the waistband, an exposed button at the waist, a placket fly opening secured by two buttons, side seam pockets, and, a rear patch pocket with a single button.

You contend that the subject garments will be purchased, marketed, and sold as pajamas or sleepwear and is therefore, classifiable under Heading 6207, HTSUSA, as sleepwear garments.

ISSUE:

Whether the subject merchandise is classifiable as sleepwear under Heading 6207, HTSUSA, or as outerwear garments under Headings 6205 and 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 must 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 classified 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. Finally, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of whether women's boxer-style shorts were classifiable as "outerwear" under Heading 6204, HTSUSA, or as "underwear" under Heading 6208, HTSUSA. The court stated the following, in pertinent part:

[P]laintiff's preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff's garments are merchandised sheds light on what the industry perceives the merchandise to be. Plaintiff also established that it is considered an underwear resource, that the Hong Kong factory which manufactured its merchandise does not produce outerwear * * *. Further, evidence was provided that plaintiff's merchandise is marketed as underwear. While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach.

You assert that the subject garments are sleepwear and should be classified as sleepwear under Heading 6207, HTSUSA. You maintain that the overall construction of the garments, including the loose-fit and the lightweight fabric construction make them particularly comfortable and suitable for sleeping. 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 line of merchandise of the manufacturer. You emphasize the subject garments will be purchased, marketed, and sold as pajamas or sleepwear. To further support your position, you refer to Headquarters Ruling Letter (HRL), 957862, dated December 21, 1995, issued to the same importer as in this case. In HRL 957862, Customs determined that a Calvin Klein flannel top similar in all material respects, except as to the type of fabric, to the subject top, and sleepwear bottoms almost identical to the subject shorts at issue, except as to the type of lightweight fabric and the length of the legs, were classifiable under Heading 6207, HTSUSA.

In Mast, the court noted that, "most consumers tend to purchase and use a garment in the manner in which it is marketed." In light of the cited line of court cases, in addition to the overall construction of the garments which is associated with sleepwear, the advertising and marketing data submitted which indicate that the garments are intended to be used as sleepwear, Customs agrees that the garments will be principally used as sleepwear. Thus, the subject garments are classifiable under Heading 6207, HTSUSA. Consequently, an analysis of the subject garments' classification under Headings 6203 and 6205, 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 Styles
U7162/U7158/U7166/U7170/U7174/U7178/U7182/ U7186 for the tops and Styles U7160/
U7156/U7164/U7168/U7172/U7176/U7180/U7184 for the bottoms 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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