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HQ 962869




June 24, 2002

CLA2 RR:CR:TE 962869 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.42.4050

Mr. Jason Workman, Import Manager
ISL, Inc.
1401 N. Central Expy #200
Richardson, Texas 75080

RE: Classification of men’s shorts; sleepwear vs. loungewear

Dear Mr. Workman:

This is in response to your April 12, 1999, letter requesting a classification ruling for men’s jam lounge shorts pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). You advise that the shorts are made by ISL. Inc. in India for G.H. Bass and Co. Two samples were submitted.

FACTS:

The subject merchandise consists of two pairs of men’s shorts. Although the ISL style numbers for these shorts differ, they both begin with “7070" and will be followed by a letter or series of letters and numbers to differentiate colors. The samples are identical. Both are made of 100 percent woven cotton flannel, they have fully elasticized enclosed waistbands with drawstrings, a fly with one button closure, and hemmed bottoms.

We are advised that the garments will be placed in the "Men’s Accessories" departments of department stores beside pajamas, tee-shirts, socks, underwear, etc.

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:

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 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, HTSUSA, for similar articles.

If it is determined that the subject bottoms are classifiable as outerwear or loungewear, the applicable heading is Heading 6203, HTSUSA, 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 three court cases that addressed sleepwear and/or underwear. 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 boxerstyle 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.

Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 97-31, 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, nonprivate activities in and around the housee.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 garments at issue reveals several features which make them suitable for modesty purposes. The shorts have fly openings with substantial one-button closures, hidden plackets, and hemmed leg bottoms. Customs is of the view that the substantial one button fly makes them suitable for modesty purposes. It is not indicative of a sleepwear bottom but 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 garment may be worn to bed for sleeping, it is our opinion that their principal use is for “home comfort” and lounging. In addition, these shorts can easily make the transition from inside the home (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, all the samples submitted are made of fabric heavy enough for outdoor use even in cool weather.

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).

You advise that the garments will be sold by G.H. Bass and Co. in the men’s accessories departments of department stores beside the pajamas, tee-shirts, socks, underwear, etc. 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 outerwear. See HQ 960926, dated February 25, 1999.

In Mast, 9 CIT 549, at 551, the court pointed out that the expert witnesses in that case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." In this case no marketing information or documentation, other than information regarding placement in the stores, was submitted. We note additionally, that in your request for a ruling you yourself refer to these as "jam lounge shorts" (emphasis added). Thus we do not agree that these garments are, or will be, presented to consumers as sleepwear garments.

Based on our examination of the garments supplied, we find that they are loungewear, i.e., loose, casual clothes that are worn in the home for comfort. Their fabric, construction and design are suitable for the type of nonprivate activities named in International Home Textile, Inc. In addition, as there was no documentation submitted regarding marketing and sales, it is ambiguous as to exactly how the garments will be marketed. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for lounging.

Taking into consideration all of the information before us, especially the garments themselves, we believe that, following the decision in International Home Textiles, Inc., the shorts at issue are properly classified as outerwear garments, not as sleepwear.

HOLDING:

The shorts with a substantial one button fly and without pockets are properly classified in subheading 6203.42.4050, 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 and shorts: Of cotton: Other: Other: Shorts: Men's." The applicable general column one rate of duty is 16.8 percent ad valorem and the 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 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 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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