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HQ 961460




December 21, 1999

CLA2 RR:CR:TE 961460 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.42.4015; 6203.42.4050

Mr. Mark Iswarienko
Fritz Companies, Inc.
10000 NW 25th Street
Miami, Florida 33172

RE: Classification of men=s woven pants and shorts: sleepwear vs. loungewear

Dear Mr. Iswarienko:

This is in response to your letter of February 6, 1998, submitted on behalf of Stone Apparel, Inc., requesting a binding ruling for prospective and current shipments of men=s woven cotton lower body garments.

FACTS:

The subject merchandise consists of two samples, referenced style KM 98009 (shorts) and style KM 98010 (pants) which will be assembled in the Dominican Republic from components manufactured in the United States. The port of importation will be Miami, Florida.

Style KM 98009, is a pair of men=s woven cotton flannel shorts. The 100% cotton fabric is plaid in design and notably soft. The shorts have side seam pockets, a fully covered tunnel elastic waistband with functional drawstring, a onebutton fly front opening which does not break the waistband, and hemmed leg openings.

Style KM 98010, is a pair of men=s woven cotton flannel pants. The 100% cotton fabric is plaid in design and notably soft. The pants have a onebutton fly front opening which does not break the waistband, a covered tunnel elastic waistband with functional drawstring, side seam pockets, and hemmed leg openings.

You advise that your client will be importing these garments and selling them to major retailers. You indicate that at this time, it is not known how these garments will be marketed or

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sold by these retailers. The manner in which these articles will be worn by the ultimate consumer is also indeterminable at this time. You claim that the goods in question are properly classified in heading 6207, HTSUSA, as men=s cotton sleepwear garments similar to pajamas.

ISSUE:

Are the goods properly classifiable as men=s sleepwear in heading 6207, or as men=s outerwear in heading 6203.

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 twopiece garments worn for sleeping. Onepiece 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 for the bottoms is heading 6203, HTSUS, which provides for, inter alia, men=s trousers and shorts.

In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two 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 Anightclothes@ as Agarments 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 boxerstyle shorts were classifiable as Aouterwear@ under heading 6204, HTSUS, or as Aunderwear@ under heading 6208, HTSUS. The court stated the following, in pertinent part:

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[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.

In past rulings, Customs has stated that the crucial factor in the classification of a garment is the garment itself. As the court pointed out in Mast, "the merchandise itself may be strong evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be selfserving as was noted by the court in Regaliti, Inc. v. United States, SlipOp. 9280 (May 21, 1992).

In this case no documentation was submitted to be considered in determining how these garments are marketed and likely to be used by purchasers.

We bring your attention to International Home Textile, Inc., Slip Op. 97-31, March 18, 1997, which classified garments similar to those 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, nonprivate 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....

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In the instant case, a physical examination of the garments at issue by the National Import Specialist revealed several features which make them suitable for modesty purposes. The bottoms have side seam pockets, a fly opening with a one button closure and hemmed leg bottoms. A substantial one button fly closure is not a useful feature on sleepwear, but on loungewear or a multipurpose garment it serves to ensure modesty. This is not indicative of sleepwear, but of a multipurpose garment that may (and probably will) be principally worn for the type of non-private activities named in International Home Textiles, Inc. Finally, although the bottoms may be worn to bed for sleeping, it is our opinion that their principal use is for Ahome 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. In addition, the samples are made of fabric heavy enough for outdoor use even in cool weather.

Accordingly, based on Customs examination of the garments supplied, we find that the garments are loungewear, i.e., loose, casual clothing that is worn in the home for comfort. The fabric, construction and design of the garments are suitable for the type of nonprivate activities named in International Home Textile, Inc. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for lounging.

HOLDING:

The pants, style number KM 98010, are classified in subheading 6203.42.4015, HTSUSA, which provides for AMen=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 and shorts: Of cotton: Other: Other: Trousers and breeches: Men=s: Other.@ The applicable general column one rate of duty is 17.2 percent ad valorem and the textile quota category is 347.

The shorts, style number KM 98009, are classified in subheading 6203.42.4050, HTSUSA, which provides for AMen=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 and shorts: Of cotton: Other: Other: Shorts: Men=s.@ The applicable general column one rate of duty is 17.2 percent ad valorem and the textile 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 your client 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.

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Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact his 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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