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HQ 963341




July 23, 2002

CLA2 RR: CR: TE 963341 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.42.4015

Mr. Basil Lindsay
RRF Industries, Inc.
34 West 33 Street
New York, NY 10001

RE: Reconsideration of NY E83947, dated July 8, 1999; Classification of men’s pants; sleepwear vs. loungewear

Dear Mr. Lindsay: This is in reply to your letter of July 22, 1999, requesting reconsideration of New York ruling letter (NY) E83947, dated July 8, 1999, issued to you. NY E83947 was issued in response to your letter dated June 23, 1999, requesting a binding ruling for the tariff classification of a pair of men's pants, style A7044. You request a reclassification of the garment under subheading 6207.91.3020, HTSUSA.

FACTS:

NY E83947 classified a sample, identified as style A7044. It is a pair of men’s woven 100% cotton flannel pants. It has an enclosed elasticized waist; a functional drawstring inside the waistband; no fly opening, and hemmed leg bottoms. In support of your request for reclassification you submit a sample of the garment and a store copy advertisement from an Ames sale circular, which you claim shows the garment will be displayed and sold as sleepwear. The Ames advertising circular pictures a pair of men's flannel pants with an external drawstring, and describes them as "Men's Cotton Flannel Pants". The ad also indicates the sale of a separate item, at a higher price, identified as "men's cotton flannel pajamas" next to the same pictured pants. Another page of an Ames circular describes what appears to be similar flannel pants, with no drawstring visible, as "Men's Cotton FlannelLounge Pants". In NY E83947, the pants, style A7044, were classified in subheading 6203.42.4015, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts: trousers, bib and brace overalls, breeches and shorts: of cotton: other; other; trousers and breeches: men's: other. The pants were found to be dutiable at the 1999 general rate of 17.2 percent ad valorem.

ISSUE:

Whether the subject merchandise was properly classified as an outerwear garment under heading 6203, HTSUS?

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 “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, 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.

Additionally, as this office has noted in prior rulings, “the merchandise itself may be strong evidence of use.” See Headquarters Ruling Letter (HQ) 957809, dated June 21, 1995, citing Mast Industries at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963).

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, 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....

In the instant case, a physical examination of the garment at issue reveals a major feature that makes it suitable for modesty purposes. The pants have no fly opening. A lack of fly opening is not a useful feature on sleepwear, but on loungewear or a multi-purpose garment it serves to ensure modesty. In addition, we note that the waistband is both elasticized and has a drawstring. A waistband that is both elasticized and contains a drawstring is not needed on a sleep garment. This, as well as the other feature listed above, are not indicative of sleepwear, but of multipurpose garments 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 “home comfort” and lounging. 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 960848 dated September 14, 1998, in which we held that the absence of a fly on similar bottoms, was indicative of multi-purpose garments which will be worn for purposes other than sleeping. (See also HQ 960432, dated August 22, 1997). In addition, the sample submitted is made of fabric heavy enough for outdoor use.

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).

Based on our examination of the garment supplied, we find that it is loungewear, i.e., loose, casual clothes that are worn in the home for comfort. The garment's fabric, construction and design are suitable for the type of non-private activities named in International Home Textile, Inc. In addition, the limited information you submitted is, at best, ambiguous as to exactly how it will be marketed. Finally, although the garment may be worn to bed for sleeping, in our opinion its principal use is for lounging. Accordingly, the classification in NY E83947 as loungewear is affirmed.

HOLDING:

The bottoms with no fly opening, elasticized waistband with functional drawstring, and hemmed leg bottoms is properly 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 and shorts: Of cotton: Other: Other: Trousers and breeches: Men’s: Other.” The general column one rate of duty is 16.8 percent ad valorem and the textile quota category is 347.

NY E83947 is affirmed.

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. The Status Report on Current Import Quota (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.treas.gov.

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,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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