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HQ 964178




August 28, 2002

CLA-2 RR:CR:TE 964178 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4015

Port Director
U.S. Customs Service
300 South Ferry Street
Los Angeles, CA 90731

RE: Protest Number 2704-00-100510; Heading 6203; Sleepwear vs. Loungewear; Men’s Pants

Dear Sir:

This is in reply to your memorandum of April 19, 2000, forwarding Application for Further Review of Protest (AFR) number 2704-00-100510 to our office for a decision.

Counsel for the protestant timely filed the AFR on February 24, 2000, against “Customs decision to demand redelivery [of one entry] of men’s cotton woven pajama bottoms. . . and to require the importer to classify the garments under HTSUS 6203.42.4015 and to obtain a new visa for textile category designation 347.”

Counsel maintains that Customs decision is inconsistent with Headquarters Ruling Letter (HQ) 957862, dated December 21, 1995, and New York Ruling Letter (NY) C81827, dated November 21, 1997.

Review of the protest is warranted pursuant to 19 CFR §§174.24 and 174.25.

FACTS:

The merchandise at issue is a pair of men’s woven pants made of 100 percent cotton, style ZSO1-27001. The pants have a covered elasticized waistband with a drawtape, two side seam pockets, two side cargo pockets, and a one-buttoned fly.

On January 18, 2000, the protestant entered one entry of the subject merchandise at the Los Angeles Seaport. On January 25, 2000, Customs released the merchandise. However, after examining a sample of the merchandise and determining that it was misclassified, Customs issued a Notice to Redeliver (Customs Form 4647) on January 26, 2000, instructing the protestant to provide a visa certificate for category 347 for the merchandise in question.

We note that the protestant failed to redeliver the merchandise and the proper visas were never provided to Customs.

Counsel maintains that the merchandise is properly classified under subheading 6107.91.0030

We assume counsel intended to cite heading 6207, as that provision encompasses men’s woven sleepwear. of the Harmonized Tariff Schedule of the United States (HTSUS), as sleepwear.

ISSUE:

Are the garments described above classifiable under subheading 6203.42.4015, HTSUS, as men’s pants, or under subheading 6207.91.3010, HTSUS, as sleepwear?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied in their appropriate order.

Heading 6207, HTSUS, 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 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.

Classification of garments as sleepwear is based upon use. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that in the absence of special language or 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 determining the classification of garments submitted to be sleepwear, Customs considers factors discussed in several decisions by the Court of International Trade. In Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (Fed. Cir. 1986) the Court of International Trade cited several lexicographic sources, among them Webster’s Third New International Dictionary which defined “nightclothes” as “garments to be worn to bed.” The court determined that the garment at issue in that case was designed, manufactured and used as nightwear and, therefore, was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 Ct. Int’l Trade 224 (1987), the court ruled that the garments at issue in that case were manufactured, marketed and advertised as nightwear and were chiefly used as such.

Additionally, as the court pointed out in Mast, “the merchandise itself may be strong evidence of use”, Id. at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963), and Customs has adopted that view as the crucial factor in the classification of a garment.

Customs also refers to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), for guidance in determining whether a garment has characteristics of sleepwear. At page twenty-four, the Guidelines state that “the term ‘nightwear’ means ‘sleepwear’ so that certain garments worn in bed in the daytime . . . are included.”

Garments that are not sleepwear may fall into various fashion categories besides sportswear, including “loungewear” or “leisure wear.” Customs has long held that loungewear includes a variety of loose, comfortable casual clothes that can be worn in a variety of settings. See HQ 082624, dated March 22, 1989. In International Home Textile, Inc. v. United States, Ct. Int’l Trade Slip. Op. 97-31, dated March 18,1997, aff’d 153 F. 3d 1378 (Fed. Cir. 1998), the Court of International Trade held that articles encompassed under heading 6107 (underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles) are characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing and dressing). The court pointed out that loungewear, on the other hand, may be worn at informal social occasions in and around the home, and for other nonprivate activities such as watching movies with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, etc. It is important to note that the parties stipulated that the garments in International Home Textile were
considered “loungewear” and the issue was whether “loungewear” was classifiable as outerwear or as sleepwear. The court found that the garments in that case were primarily used for lounging and not for sleeping. Thus, when ruling on similar merchandise Customs policy has been to carefully examine the physical characteristics of the garment in question. When this has not proven substantially helpful, we consider other extrinsic evidence 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, i.e., 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 factor 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 Ct. Int’l Trade 407 (1992).

Counsel argues that the pants are ordered, designed, expressly manufactured, marketed, sold and worn as men’s pajamas. He states that the pants are loose fitting and have “extra-long” legs. Customs National Import Specialist for this commodity examined the merchandise, marked as a size large. The inseam measured 30 inches, which is not extra-long, or even long, by industry standards.

Additionally, counsel cites two rulings to support his claim that the instant garments are sleepwear. In HQ 957862 and NY C81827, Customs classified bottoms as sleepwear based on the advertising and marketing material, in conjunction with the design of the men’s matching tops. In the instant case, only bottoms are imported and they possess features not generally associated with sleepwear, such as large cargo pockets on each leg. This feature is typical of outerwear and not generally considered suitable for garments intended to be used for the primary activity of sleeping.

Moreover, Customs has consistently classified garments similar to the ones at issue featuring a one-button fly, side seam pockets, an elasticized covered waist and a drawstring, as loungewear. See NY F81111, dated January 5, 2000; NY F82223, dated February 9, 2000; NY F85677, dated May 3, 2000; NY F86113, dated April 28, 2000; NY F87264, dated June 8, 2000; HQ 958594, dated January 26, 1996.

The protestant submitted one letter from the Director of Marketing of ZG Sport (the seller of the pants), which states that he is responsible for the creation and
marketing “of all loungewear sold” by that company. The letter further reads:

Loungewear is updated, fashion sleepwear and consists of jams, pants, matching tops, t shirts and robes; loungewear has superceded pajamas. Loungewear is primarily worn to bed and is put on after coming home from work, while hanging out at home with family. As such, lounge bottoms often have pockets for the wearer’s convenience, much like a robe does. . . .

We agree that the bottoms in question are loungewear garments and are typical of the type of garments worn at informal social occasions and for the other nonprivate activities, as discussed in International Home Textile.

Finally, since the garments themselves are a potent witness, we are not persuaded by the advertising and marketing material counsel submitted in support of the protestant’s claim that the bottoms are sleepwear.

Based on the foregoing, we find that Customs correctly classified style ZSO1-27001 under subheading 6203.42.4015, HTSUS, as men’s pants.

HOLDING:

The protest should be DENIED. The garments in question are classifiable under subheading 6203.42.4015, HTSUS, as men’s cotton woven pants. They are dutiable at the 2000 HTSUS general column one rate at 17 percent ad valorem. The textile category is 347.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 30 days from the date of this letter.

Thirty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel, and to the public on the Customs Home Page of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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