CLA-2 CO:R:C:T 951537 CAB

TARIFF NOS.: 6207.21.0010; 6207.91.3010; 6203.42.4050

Mr. Bruce Schiller
MSAS Customs Logistics Inc.
8725 NW 18th Terrace
Suite 301
Miami, FL 33172

RE: Classification of men's boxer shorts, sleepshirt, and sleep bottoms Dear Mr. Schiller:

This letter is in response to your inquiry of March 6, 1991, requesting a tariff classification of men's woven garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The garments will be produced in the Dominican Republic. Seven samples were submitted for examination.

FACTS:

All of the samples have a small to extra large size range. Styles Nos. 4100 and 4100NC are 100 percent woven flannel cotton sleepshorts. Both samples contain a fully elasticized waist, side seam pockets, and a single button fly closure. Style 4100 has a 1 1/2 contrasting cuff. Style 4100NC has a hemmed bottom.

Styles Nos. 4000LP and 4104LP are 100 percent woven cotton flannel sleep pants. Both samples contain a fully elasticized waist, hemmed bottoms, and a single button fly closure. Style 4104LP has a rear pocket.

Style No. 5000T is a 100 percent woven cotton flannel nightshirt. The pullover nightshirt has a V-neck collar, with two buttons for closure, a left breast pocket, a hemmed bottom, and long cuffed sleeves.

Style No. 406 is a pair of 100 percent woven cotton boxer shorts. The shorts have a fully elasticized enclosed waistband, and a fly front opening with a single button for closure. The New York Customs Laboratory determined that the shorts have a fabric weight of 4 ounces per square yard.

Style No. 500 is a pair of 100 percent woven cotton flannel boxer shorts. The shorts have a fully elasticized enclosed waistband, hemmed bottom, and a fly front opening with a single button closure. The New York Customs Laboratory determined that the shorts have a fabric weight of 4 ounces per square yard.

ISSUE:

What is the applicable classification of the merchandise in question under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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, taken in order.

Heading 6207, HTSUSA, provides for, inter alia, men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles. Style 5000T, is instantly recognizable as a nightshirt for sleeping. Thus, it is classifiable as a nightshirt in Heading 6207.

Customs has consistently ruled that pajamas are generally two piece garments worn for sleeping. One piece garments used for sleeping may be classifiable as pajamas, but such garments cover the entire torso. Other one piece garments used for sleeping are not classifiable as pajamas; instead, they fit into a residual provision within Heading 6207 for similar articles. Garments classifiable in this residual provision include sleep shorts and sleep pants. See Headquarters Ruling Letter (HRL) 088635, dated May 24, 1991; HRL 089367, dated July 31, 1991; HRL 089052, dated July 12, 1991. In this instance, Styles 4100, 4100NC, 4100LP, and 41104LP are all one piece garments used for sleeping and classifiable in this residual provision.

Style 500, a pair of cotton flannel boxer shorts, are potentially classifiable as men's boxers shorts or as a garment used for sleeping. The shorts are made of flannel fabric which is not generally used to construct underpants because the fabric would usually be too bulky under outerwear garments. Also, the shorts contain an enclosed waistband which is indicative of nonunderwear garments. Consequently, Style 500 is classifiable in the residual provision of Heading 6207.

Heading 6203, HTSUSA, provides for, inter alia, men's or boys' shorts. HRL 087940 of September, 16, 1991, enumerated numerous factors that were determinative of whether a garment is considered underwear or outerwear. In this instance, Style 406 has a fabric weight of less 4.2 ounces and an enclosed waistband, which are two of the enumerated factors that are indicative of outerwear. Usually the presence of more than one factor gives rise to a presumption that the garment is outerwear or a unisex garment. Also, Style 406 is constructed of a very stiff and coarse fabric that is not commonly used for underwear. Thus, Style 406 is classifiable as men's shorts in Heading 6203.

HOLDING:

Based on the foregoing, Style 5000T is classifiable under subheading 6207.21.0010, HTSUSA, which provides for men's...nightshirts, pajamas, bathrobes, dressing gowns and similar articles; nightshirts and pajamas; of cotton; with two or more colors in the warp and/or the filling. The rate of duty is 9.5 percent ad valorem and the textile category is 351. Styles 4100, 4100NC, 4000LP, 4104LP, and 500 are classifiable under subheading 6207.91.3010, HTSUSA, which provides for men's... nightshirts, pajamas, bathrobes, dressing gowns and similar articles; other ; of cotton; other sleepwear. The rate of duty is 6.5 percent ad valorem and the textile category is 351. Style 406 is classifiable under subheading 6203.42.4050, HTSUSA, which provides for the provision for men's or boys' suits, ensembles... and shorts; trousers, bib and brace overalls, breeches and shorts; of cotton; other; other; shorts; men's. The rate of duty is 17.7 percent ad valorem and the textile category is 347.

The designated textile and apparel category may be subdivided into parts. If so, 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 that you check, close to the time of shipment, the Status Report on Current Import Quota (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs Service.

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
Commercial Rulings Division