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HQ 961729




September 25, 1998

CLA-2 RR:CR:TE 961729 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.42.4015; 6203.42.4050

Ms. Sandra L. Haupt
Senior Management Consultant
Tower Group International, Inc.
128 Dearborn Street
Buffalo, NY 14207-3198

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

Dear Ms. Haupt:

This is in response to your letter of April 3, 1997, on behalf of your client, Haband Company, requesting a classification ruling for men's "relaxer" pants pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). We note that although your letter is dated 1997, it was not received by Customs until April 6, 1998.

FACTS:

The subject garment, style 846, is a pair of men's woven flannel bottoms. It is made of 60% cotton and 40% polyester fabric. It has an enclosed elasticized waist with a functional drawstring and a button closure on the waistband. It has side seam pockets, a back pocket, a placketed fly front with a two button closure, and hemmed leg bottoms.

You indicate that the chief use of the garment is sleep and lounge wear. The advertising submitted refers to the garment as a flannel relaxer "(i)ncredibly comfortable, yet perfectly proper-just right for everything you enjoy, from reading the morning paper to making a midnight snack." Nowhere in the advertisement is sleeping mentioned. You submit that the garment should be classified in subheading 6207.21, HTSUSA, as pajamas.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear under heading 6207, HTSUS, or as outerwear garments under heading 6203, HTSUS.

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LAW AND ANALYSIS:

Classification of goods under the HTSUS 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, HTSUS, 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, HTSUS, for similar articles.

If it is determined that the subject bottoms are classifiable as outerwear or loungewear, the applicable heading is heading 6203, HTSUS, which provides for, inter alia, men's trousers.

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, HTSUS, or as "underwear" under heading 6208, HTSUS. 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.***
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.

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Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 97-31,
March 18, 1997, which classified garments similar to the one at issue here 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....

In the instant case, a physical examination of the garment at issue reveals several features which make them suitable for modesty purposes-the placketed fly opening with a substantial two button closure and button at the waist, side seam pockets, and hemmed leg bottoms. These features are not indicative of a sleepwear bottom but a multi-purpose garment that may (and probably will) be principally worn for the type of non-private activities named in International Home Textiles, Inc.

In addition, the advertising which was submitted does not support a sleepwear classification. A number of activities for which the garment is "perfectly proper" and "just right" to wear are listed. These include reading the paper and making a midnight snack. The garment is shown being worn while reading as well as lounging. Nowhere in the advertising is sleeping mentioned or shown as a use for the garment.

Finally, although the garment may be worn to bed for sleeping, it is our opinion that its principal use is for "home comfort" and lounging. In addition, these bottoms can easily make the transition from inside the home (in a private setting) to outside the home (and a more social environment). See for example HQ 958594 dated January 26, 1996, in which we held that a placketed fly opening with a substantial one button closure on similar bottoms was indicative of multi-purpose garments which will be worn for purposes other than sleeping. Therefore, following both HQ 958594 and the decision in International Home Textiles, Inc., the bottoms at issue are properly classified in heading 6203, HTSUS.

HOLDING:

The bottoms with a placketed fly opening with a substantial two button closure, side seam pockets, and hemmed leg bottoms are classified in subheading 6203.42.4015, HTSUSA, which provides for Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches

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and shorts: Of cotton: Other: Other: Trousers and breeches: Men's: Other. The applicable rate of duty is the general column rate of 17.3 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
Commercial Rulings Division


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