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HQ 960431




Augusts 4, 1997

CLA-2 RR:TC:TE 960431 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010; 6207.21.0010; 6207.91.1000

Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Classification of men's garments; sleepwear vs. outerwear

Dear Ms. Kobayashi:

This is in response to your inquiry of April 1, 1997, on behalf of your client, Hampton Industries, for a tariff classification ruling for certain men's garments pursuant to the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted to this office for examination.

FACTS:

The subject merchandise consists of four sample garments, all constructed of a woven cotton flannel material. Although style numbers were not given for the subject merchandise, certain numbers are identified on the hangtags. You state in your submission that these items will feature matching fabric and will be sold separately so that the customer has the option of buying a different size or different style top and bottom, depending on the needs and taste of the individual. The first garment, Lot No. 01805, a bathrobe, extends from the neck and shoulders to below the knee, has a shawl collar, long sleeves, a full frontal opening secured by a self fabric tie, and two patched pockets below the waist. Lot No. 01810, a pullover garment, contains a round collar, a placketed partial opening at the neckline secured by three buttons, and long sleeves. Lot No. 01807, a pair of shorts, features an enclosed elasticized waistband, side seam pockets, a placketed fly with a one button closure, and hound's-tooth cuffs. Lot No. 01806, a pair of pants, features an enclosed elasticized waistband, side seam pockets, a placketed fly with a one button closure, and hemmed leg bottoms.

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:

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

Heading 6207, HTSUSA, provides for, inter alia, men's nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two-piece garments worn for sleeping. One-piece garments such as sleep shorts and sleep pants used for sleeping are not classifiable as pajamas, instead they fall into a residual provision within Heading 6207, HTSUSA, for similar articles.

If however, it is determined that the subject bottoms and tops are classifiable as outerwear or loungewear, the applicable headings are Heading 6203, HTSUSA, which provides for, inter alia, men's trousers, and Heading 6205, HTSUSA, which provides for, men's or boys' shirts.

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in three court cases that addressed sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 144 (CAFC, 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.

Additionally, as this office has noted in prior rulings, " the merchandise itself may be strong evidence of use." See Headquarters Ruling Letter (HQ) 957809, dated June 21, 1995, citing Mast Industries at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). Customs noted in HQ 957810, dated June 21, 1995, that "flannel is not exclusively used for sleepwear and its popularity for use in other garments appears to be increasing."

You contend that the subject garments are sleepwear and should be classified as sleepwear under Heading 6207, HTSUSA. You assert that the overall construction of the garments including the flannel material which is traditionally associated with pajamas, in conjunction with the loose fit supports classification as sleepwear garments. You also contend that the garments were designed, manufactured and marketed by the importer as sleepwear garments. To further substantiate your claim you submitted letters from buyers of this merchandise, major retailers, who state that the subject garments are being purchased, marketed, and displayed in the sleepwear/pajama departments as garments to be worn to bed. In light of the cited line of court cases and most importantly the garments themselves, Customs agrees that the garments at issue will be principally used as sleepwear. Thus, the subject garments are classifiable under Heading 6207, HTSUSA. See, HQ 956202, dated September 29, 1994, where Customs determined that substantially similar flannel garments were classified under Heading 6208, HTSUSA. In HQ 956202, Customs noted, in pertinent part:

Customs is of the opinion that styles 7002 and 7003, as individual articles, clearly share characteristics and purpose with the exemplars to heading 6208, HTSUSA. We believe styles 7002 and 7003 may be characterized as intimate apparel. They are garments that would not be worn outside the home, and when worn, would be worn only in the presence of family or close friends. The garments also share a purpose with certain of the exemplars of heading 6208, HTSUSA. Styles 7002 and 7003 are designed, marketed and advertised as sleepwear....Most important, however, are the garments themselves. As the court stated in Mast,..., the merchandise itself may be strong evidence of use....

Accordingly, if 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.

You contend that due to the oversized styling of the pajama top that when imported alone, it is classifiable in subheading 6207.21.0010, which provides for nightshirts and pajamas. You cite HQ 956202 which classified a women's garment which you state is similar to the top at issue in this heading. In HQ 956202, Customs described the garment in the following manner:

The nightshirt has long sleeves with button cuffs, a round collar, and a partial front opening starting at the neck secured by six buttons. The garment extends to slightly above the knee in length with rounded bottom with side vents and is designed to be loose fitting. It has the general appearance of a typical nightshirt.

In this case the subject shirt does not have the general appearance of a men's nightshirt. A men's nightshirt typically extends past the knee of an average size wearer. The shirt in this instance extends to above the knees of an average size man. Moreover, HQ 956202 is persuasive when evaluating a women's oversized garment and not a men's oversized garment. Consequently, Customs does not agree with your proposition that the subject top if imported separately is classifiable as a nightshirt under Heading 6207, HTSUSA.

HOLDING:

The bathrobe is classified in subheading 6207.91.1000, HTSUSA, which provides for men's woven cotton bathrobes. The rate of duty is 9.2 percent ad valorem and the textile restraint category is 350.

If the tops or bottoms are imported separately or in unequal numbers without matching pieces, they will be classified in subheading 6207.91.3010, HTSUSA, which provides for men's sleepwear garments of cotton similar to pajamas and nightshirts. The applicable rate of duty is 6.4 percent ad valorem and the textile restraint category is 351. If the subject garments are imported together in equal numbers of matching tops and bottoms, 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 9.3 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 applicable to textile merchandise, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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