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HQ 962703




November 2, 2000

CLA2 RR:CR:TE 962703 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010,

Beth Ring, Esq.
Sandler, Travis & Rosenberg, P.A.
551 Fifth Avenue
New York, New York 10176

RE: Classification of men’s pants and shorts with open fly; sleepwear vs. outerwear

Dear Sir:

This is in response to your letter of March 11, 1999, on behalf of your client, Joe Boxer Corporation, requesting a binding ruling on two men’s garments made in Cambodia, pursuant to the Harmonized Tariff Schedules of the United States (HTSUS). Two samples were submitted.

FACTS:

The sample, identified as Style 1535, is a pair of woven 100% cotton flannel pants. The pull-on pants feature a one and one half inch enclosed elasticized waistband with a functional drawstring on the inside; side seam pockets which are approximately 4 inches long; flapped cargo type pockets on each leg at approximately the knee level, the flaps have Velcro type closures; and a hemmed bottom. The pants have an unsecured fly opening, which is approximately 6 inches in length, starting just below the waistband. A hangtag describes this style as “Long Bun Warmer”.

The sample, identified as Style 1537, is a pair of woven 100% cotton flannel shorts. The pull-on shorts feature a one and one half inch enclosed elasticized waistband with a functional drawstring on the inside; side seam pockets which are approximately 4 inches long; flapped cargo type pockets on each leg at approximately the thigh level, the flaps have Velcro type closures; and a hemmed bottom. The pants have an unsecured fly opening, which is approximately 4 inches in length, starting just below the waistband. A hangtag describes this style as “Toasty”.

ISSUE:

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

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI’s) governs classification of goods under the HTSUSA. 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. The Explanatory Notes to the HTSUSA (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 8980, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

In order to determine whether or not the garments are sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade. In Mast Industries, Inc. v United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986) the Court dealt with the classification of a garment claimed to be sleepwear and cited Webster’s Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed." In Mast, the court ruled that the garments at issue were designed, manufactured, and marketed as nightwear and were chiefly used as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled that the garments at issue were designed, manufactured, and advertised as sleepwear and were chiefly used as sleepwear.

In the recent case of International Home Textile, Inc. v. United States, Slip Op. 9731, March 18, 1997, the Court of International Trade addressed the issue of whether certain men’s garments were properly classified under the provision for cotton pants, shorts and tops or as sleepwear under the HTSUSA. The court held that in order to be classified as sleepwear, certain loungewear items must share that essential character of being for a "private activity", e.g., sleeping. The court also stated that garments classified as sleepwear would be inappropriate for use 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, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like."

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, 16 C.I.T. 407 (May 21, 1992). We have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outwear. See HQ 955341 of May 12, 1994.

In the instant case, a physical examination of the garments at issue reveals that the design, although somewhat ambiguous due to the styling features, particularly the cargo type pockets, in light of the unsecured fly, makes them unsuitable for modesty purposes. An open fly is a feature whose essential character is privateness or private activity, which is indicative of sleepwear and pajamas. An unsecured fly does not satisfy the conventional standards of modesty necessary on a garment that would be worn for the type of non-private activities named in International Home Textiles, Inc. In addition the marketing material and purchase order which was submitted describe the long garment as “PJ pants” and the short garment as “sleepshorts”. In our view, both of these garments are clearly being presented as sleepwear garments for the primary purpose of wearing to bed for sleeping and, in fact, nothing else in the advertising copy suggests the garments are designed or intended for wear other than while sleeping. In Mast, at 551, the court pointed out that the expert witnesses in the case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." In the instant case the advertising and marketing of the garments in question is as pajamas or garments for sleeping. Thus, Customs agrees that these garments are presented to consumers as sleepwear.

Although the subject garments could possibly be used for social activity inside the home, it is our view that because of the unsecured fly; it would be inappropriate to wear these garments while participating in any "... nonprivate activities in and around the house.". It is however, our view that this use would be a fugitive use. In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade stated: “The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function.” In this case, because the submitted samples are capable of being used to lounge inside the home does not change what is their principal use and character as sleepwear. Thus, it is our determination that these garments have the essential character of privateness, i.e. of being used for the private activity of sleeping. They are therefore properly classifiable as sleep garments, not loungewear.

Heading 6207, HTSUS, provides for, inter alia, pajamas and similar articles. Customs has consistently ruled that pajamas are generally twopiece garments worn for sleeping, one-piece garments such as these under consideration have been classified as other woven sleepwear.

HOLDING:

The instant merchandise is properly classifiable under the provision for "Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gown and similar articles: Other: Of cotton: Other: Sleepwear”, in subheading 6207.91.3010, HTSUSA, and are dutiable under the general column one rate of 6.5 percent ad valorem. The textile category for this provision is 351.

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 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 updated weekly and 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

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