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HQ 960432




August 22, 1997

CLA-2 RR:TC:TE 960432 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010; 6207.21.0010; 6203.42.4015; 6203.42.4050

Eleanor 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 2, 1997, and subsequent submission of August 5, 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 five sample garments, all constructed of a woven cotton flannel fabric. Style numbers were not given for the subject merchandise. The submitted top features long sleeves with cuffs, a full frontal opening secured by a five button closure, a pointed collar, and a breast pocket. The submitted shorts feature a fully elasticized enclosed waistband, side seam pockets, and cuffs. The shorts do not have a fly. Two styles of pants are also at issue. You state that the subject shorts and pants can be coordinated with the top. We note that the one pair of pants and the shorts are made of a different color flannel plaid material than the top at issue. For purposes of this ruling, Customs is assuming that if the pants are to be coordinated with the top, at the time of importation, the tops and bottoms will be comprised of identical flannel fabric. One style pant has an exposed elastic waistband, no fly, elastic at the pant legs, and two side seam pockets. The other style pant contains a covered elastic waistband, no fly, and elastic at the pant legs.

All of the pants and the shorts are available without pockets and with a fly opening secured by one button.

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 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 combined 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.

You indicate in your letter that the subject bottoms feature no fly and side seam pockets or no fly and no side seam pockets. You also indicate that these bottoms are available with a one button closure and no side seam pockets or one button closure and side seam pockets. With respect to the bottoms that will feature no fly and side seam pockets, it is the opinion of this office that bottoms with the combination of those two features are not indicative of a sleepwear bottom but a multi-purpose garment that may (and probably will be) worn for purposes other than sleeping. These bottoms can easily make the transition from inside the home (a private setting) to outside the home (and a more social environment). The lack of fly makes them suitable for modesty purposes and the presence of pockets makes them a comfortable and useful outerwear garment to carry keys, money, identification and similar small objects. Additionally, even for those garments that lack both the fly and the side seam pockets, we find the absence of the fly on these bottoms indicative of a multi-purpose garment.

You make reference to HQ 089247, dated July 18, 1991, which classified virtually identical merchandise as sleepwear in heading 6207. This office is in the process of reviewing that ruling to ensure uniformity with Customs classification for that merchandise. Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 94-06-00347, March 18, 1997, which classified similar garments without a fly as loungewear in heading 6103, HTSUS. The court therein stated:

Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court finds no basis in the exhibits, the witness testimony, or the loungewear's construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn at informal social occasions in and around the home, and for other individual, non-private activities in and around the house--e.g., watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like...

As such, we find that these garments are properly classified in heading 6203, HTSUS.

However, in the situation where the bottoms will feature a fly with substantial one button closure and no side seam pockets, or a one button closure and side seam pockets, we agree that these bottoms give the appearance of and will be used primarily as sleepwear. This is substantiated by the line of court cases cited above which find support for classification in the marketing and advertising of the garments, and most importantly the appearance of the garments themselves. 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 featuring a fly and no side seam pockets or a fly and side seam pockets are imported together in equal numbers, they will be classified as pajamas under Heading 6207, HTSUSA. If however, unequal numbers of tops and bottoms featuring a fly and no side seam pockets or fly and side seam pockets 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 under 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 knee 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:

If the tops or bottoms with fly and no side seam pockets or fly and side seam pockets 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 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 with fly and no side seam pockets, or fly and side seam pockets, 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.

If the bottoms feature no fly and side seam pockets or no fly and no side seam pockets, they will be classified as follows: the pants are classified in subheading 6203.42.4015, HTSUS, which provides for men's cotton trousers, other. The applicable rate of duty is 17.4 percent ad valorem and the quota category is 347; the shorts are classifiable in subheading 6203.42.4050, HTSUS, which provides for men's cotton shorts, other. The applicable rate of duty is 17.4 percent ad valorem and the 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 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
Division

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