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HQ 963906




April 4, 2001

CLA-2 RR:CR:TE 963906 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6207.91.3010

Robert L. Eisen, Esq.
Christopher E. Pey, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703

RE: Classification of men’s woven cotton flannel trousers; sleepwear vs. loungewear

Dear Mr. Eisen and Mr. Pey:

This is in response to your letter of March 8, 2000, on behalf of your client, Exquisite Apparel Corp., in which you request a binding classification ruling for a pair of men’s woven cotton flannel trousers. You have submitted a sample for Customs’ examination. You advise that the sample differs from the imported merchandise only in the fact that the sample was made in the Philippines, and that product labels above the case label on the inside of the waistband have been removed. The imported merchandise will be made in Bangladesh and will have a brand label inside the rear waistband. You claim that the classification issue addressed is similar to the one involved in Exquisite Apparel Corp. v. United States, Court No. 00-02-00056, which was settled by stipulation in the Court of International Trade.

FACTS:

The submitted sample is a pair of men’s woven cotton flannel trousers. The garment features an elasticized waistband with a functional drawstring, side seam pockets, hemmed bottoms, and a fly front with one button closure (which does not break the waistband).

ISSUE:

Whether the subject merchandise is classifiable as a man’s cotton sleepwear garment similar to pajamas under subheading 6207.91.3010, HTSUSA, or as men’s cotton outerwear trousers of subheading 6203.42.4015, HTSUSA? LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (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, applied in sequential 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 used for sleeping are not classifiable as pajamas; instead they fall into a residual provision within heading 6207, HTSUSA, for similar articles. Garments classifiable in this residual provision include sleep shorts and sleep pants.

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 considers the factors discussed in two decisions of the Court of International Trade (CIT) which are often cited when discussing sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), the Court of International Trade dealt with 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.

Furthermore, 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, non-private 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....

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), (hereinafter Guidelines), which offer guidance to the trade community and Customs personnel as to various characteristics of garments, state that "the term 'nightwear' is interpreted as meaning 'sleepwear' so that certain garments worn in bed in the daytime, , are included." The Guidelines indicate that besides pajamas, other nightwear includes various articles worn for sleeping.

Classification of garments as sleepwear is classification based upon use. In this regard, Additional U.S. Rule of Interpretation 1(a) provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise.

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 self-serving 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 support of your claim that these garments are sleepwear and should be so classified, you provide an affidavit from the founder of Exquisite Apparel stating that Exquisite imports and sells only underwear, sleepwear and ties. A letter from Target Store’s underwear and sleepwear senior buyer provided states that Exquisite is a supplier to Target only of sleepwear and underwear. You also submit a number of letters from men's sleepwear buyers of stores stating that these garments will be purchased by them and sold either in the stores’ sleepwear department or separately from clothing designed for outdoor use. A photo of similar pants being sold alongside bathrobes and underwear in Kmart was also enclosed. In addition, a number of photographs were submitting which you claim shows that the fly front gapes and does not provide sufficient privacy and modesty to the wearer in upright seated position, or to permit a wearer to venture outside or to mingle informally indoors.

Customs has stated on numerous occasions that the location within a store in which a garment is sold is not determinative of its classification. Although the environment of sale is a factor which may be considered in determining a garment's identity, Customs recognizes that sleepwear/loungewear departments often sell a variety of merchandise, for example, garments known as leisure wear (i.e., loose, comfortable clothing worn in or outside the home in a casual environment). This is especially true in women's fashions and, in our view, becoming increasingly true in men's fashions. See, HRL 955341 of May 12, 1994 and rulings cited therein; HRL 952105 of July 1992; HRL 085672 of October 29, 1989; HRL 951032 of May 7, 1992; and HRL 955088 of December 14, 1993.

In further support of your claim that this garment is to be classified as sleepwear you submitted documentation in the way of purchase orders. As we have stated in the past, when presented with a garment which is ambiguous and not clearly recognizable as sleepwear, underwear, loungewear or outerwear, Customs will look to 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. 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. In the case of the subject merchandise the purchase orders you have submitted from various retailers indicate that this garment is being purchased as a men’s sleep pant. You have also submitted information substantiated by an advertisement in an apparel trade magazine that your client is in the business of selling underwear and sleepwear, principally for men and boys.

The determinative issue is whether the sample is classifiable as sleepwear or as outerwear. It is both practicable and commercially acceptable for woven cotton flannel trousers to be marketed, sold and used by consumers as either sleepwear or outerwear. The issue of whether a particular woven flannel trouser is sleepwear or outerwear depends, in large part, on whether the article's design renders it principally suitable for use as one or the other and the manner in which the garment is marketed.

In classification, the most persuasive evidence is the garment itself. The court in Mast Industries, Inc. v. United States, 9 CIT 549, 552, (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963), pointed out that "the merchandise itself may be strong evidence of use." Customs believes this basic principle is especially valid in this case.

Customs will therefore base its classification decision on the sample’s physical characteristics. As this office has noted in prior rulings, “the merchandise itself may be strong evidence of use.” See Headquarters Ruling Letter (HRL) 957809, dated June 21, 1995, citing Mast Industries, Inc. v. United States, 9 CIT 549, at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The sample is manufactured from woven flannel, a fabric commonly, but certainly not exclusively, associated with sleepwear apparel. As Customs stated in HRL 957810, dated June 21, 1995, “[F]lannel is not exclusively used for sleepwear and its popularity for use in other garments appears to be increasing.” In that ruling, this office also noted that certain features such as covered waistbands and side seam pockets are features generally associated with garments intended to be worn in public as opposed to sleep garments. Additionally, the absence of a fly in goods of similar construction is generally indicative of a garment’s status as outerwear.

In the instant case, the sample possesses both a covered waistband and side seam pockets. Although the garment does have side seam pockets, this feature will not preclude a garment from being classified as sleepwear inasmuch as these pockets do not interfere with the garment’s practical use for sleeping. The garment possesses a fly opening which is secured by a one button closure. We note that both the button and the button hole are very close to the outside edge of the placketed fly. This allows very little overlapping of the fabric around the opening, resulting in the fly front gaping open when the garment is worn.

In HRL 956507 of October 11, 1994, Customs classified a pair of men's woven cotton flannel pants as pants of heading 6203, HTSUSA, and not as sleepwear. The pants had side seam pockets and no fly. In ruling the garment was not sleepwear, Customs stated:

Likewise, the presence of a front fly is a matter of common sense and convenience in the case of pajamas, but such a feature might be avoided in the design of loungewear of simple construction. The decency element associated with wearing apparel might dictate a closure on a fly or no fly at all in the case of loungewear, whereas in the case of pajamas, unsecured flies are common. This understanding is confirmed by information provided by the trade.

A physical examination of the sample before us reveals several features which are congruous with the garment’s classification as men’s pajamas. It is the opinion of this office that the presence of the fly front with an insubstantial one button closure does not provide the type of coverage that would enable the pants to be worn as outerwear. In addition, we agree that the fabric composition of the subject pants is of “lightweight flannel fabric” and that the loose construction and styling of the garment makes especially persuasive evidence of the garment’s status as sleepwear.

As such, it is not unreasonable to find that, based on the physical characteristics of the subject garment, particularly the insubstantial one button fly which is inappropriate for modesty purposes, loose fit, and the soft lightweight flannel fabric, combined with the documentation you have submitted, that the subject merchandise is a sleepwear garment.

HOLDING:

The bottoms, style1535, with an elasticized waistband with drawstring, placketed fly opening with insubstantial one button closure, side seam pockets and hemmed leg bottoms are classified in subheading 6207.91.3010, HTSUSA, which provides for “Men’s or boys’ singlets an other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Other: Of cotton: Other: Sleepwear.” The applicable general column one rate of duty is 6.3 percent ad valorem and the textile quota category 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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