CLA-2 RR:TC:TE 960431 jb
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Classification of men's garments; sleepwear vs. outerwear
Dear Ms. Kobayashi:
This is in response to your inquiry of April 1, 1997, on
behalf of your client, Hampton Industries, for a tariff
classification ruling for certain men's garments pursuant to the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). Samples were submitted to this office for examination.
FACTS:
The subject merchandise consists of four sample garments,
all constructed of a woven cotton flannel material. Although
style numbers were not given for the subject merchandise,
certain numbers are identified on the hangtags. You state in
your submission that these items will feature matching fabric and
will be sold separately so that the customer has the option of
buying a different size or different style top and bottom,
depending on the needs and taste of the individual. The first
garment, Lot No. 01805, a bathrobe, extends from the neck and
shoulders to below the knee, has a shawl collar, long sleeves, a
full frontal opening secured by a self fabric tie, and two
patched pockets below the waist. Lot No. 01810, a pullover
garment, contains a round collar, a placketed partial opening at
the neckline secured by three buttons, and long sleeves. Lot No.
01807, a pair of shorts, features an enclosed elasticized
waistband, side seam pockets, a placketed fly with a one button
closure, and hound's-tooth cuffs. Lot No. 01806, a pair of
pants, features an enclosed elasticized waistband, side seam
pockets, a placketed fly with a one button closure, and hemmed
leg bottoms.
ISSUE:
Whether the subject merchandise is classifiable as sleepwear
under Heading 6207, HTSUSA, or as outerwear garments under
Heading 6205, HTSUSA, and Heading 6203, HTSUSA?
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 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,
HTSUSA, for similar articles.
If however, it is determined that the subject bottoms and
tops are classifiable as outerwear or loungewear, the applicable
headings are Heading 6203, HTSUSA, which provides for, inter
alia, men's trousers, and Heading 6205, HTSUSA, which provides
for, men's or boys' shirts.
In determining the classification of garments submitted to
be sleepwear, Customs usually considers the factors discussed in
three 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 boxer-style 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. Plaintiff also established that it
is considered an underwear resource, that the Hong Kong
factory which manufactured its merchandise does not produce
outerwear * * *. 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). Customs noted in
HQ 957810, dated June 21, 1995, that "flannel is not exclusively
used for sleepwear and its popularity for use in other garments
appears to be increasing."
You contend that the subject garments are sleepwear and
should be classified as sleepwear under Heading 6207, HTSUSA.
You assert that the overall construction of the garments
including the flannel material which is traditionally associated
with pajamas, in conjunction with the loose fit supports
classification as sleepwear garments. You also contend that the
garments were designed, manufactured and marketed by the importer
as sleepwear garments. To further substantiate your claim you
submitted letters from buyers of this merchandise, major
retailers, who state that the subject garments are being
purchased, marketed, and displayed in the sleepwear/pajama
departments as garments to be worn to bed. In light of the cited
line of court cases and most importantly the garments themselves,
Customs agrees that the garments at issue will be principally
used as sleepwear. Thus, the subject garments are classifiable
under Heading 6207, HTSUSA. See, HQ 956202, dated September 29,
1994, where Customs determined that substantially similar flannel
garments were classified under Heading 6208, HTSUSA. In HQ
956202, Customs noted, in pertinent part:
Customs is of the opinion that styles 7002 and 7003, as
individual articles, clearly share characteristics and
purpose with the exemplars to heading 6208, HTSUSA. We
believe styles 7002 and 7003 may be characterized as
intimate apparel. They are garments that would not be worn
outside the home, and when worn, would be worn only in the
presence of family or close friends. The garments also
share a purpose with certain of the exemplars of heading
6208, HTSUSA. Styles 7002 and 7003 are designed, marketed
and advertised as sleepwear....Most important, however, are
the garments themselves. As the court stated in Mast,...,
the merchandise itself may be strong evidence of use....
Accordingly, if matching tops and bottoms are imported
together in equal numbers, they will be classified as pajamas
under Heading 6207, HTSUSA. If however, unequal numbers of tops
and bottoms are imported together, the odd tops or bottoms
without a matching piece will be classified in the residual
subheading under Heading 6207, HTSUSA, for similar articles.
You contend that due to the oversized styling of the pajama
top that when imported alone, it is classifiable in subheading
6207.21.0010, which provides for nightshirts and pajamas.
You cite HQ 956202 which classified a women's garment which you
state is similar to the top at issue in this heading. In HQ
956202, Customs described the garment in the following manner:
The nightshirt has long sleeves with button cuffs, a round
collar, and a partial front opening starting at the neck
secured by six buttons. The garment extends to slightly
above the knee in length with rounded bottom with side vents
and is designed to be loose fitting. It has the general
appearance of a typical nightshirt.
In this case the subject shirt does not have the general
appearance of a men's nightshirt. A men's nightshirt typically
extends past the knee of an average size wearer. The shirt in
this instance extends to above the knees of an average size man.
Moreover, HQ 956202 is persuasive when evaluating a women's
oversized garment and not a men's oversized garment.
Consequently, Customs does not agree with your proposition that
the subject top if imported separately is classifiable as a
nightshirt under Heading 6207, HTSUSA.
HOLDING:
The bathrobe is classified in subheading 6207.91.1000,
HTSUSA, which provides for men's woven cotton bathrobes. The
rate of duty is 9.2 percent ad valorem and the textile restraint
category is 350.
If the tops or bottoms are imported separately or in unequal
numbers without matching pieces, they will be classified in
subheading 6207.91.3010, HTSUSA, which provides for men's
sleepwear garments of cotton similar to pajamas and nightshirts.
The applicable rate of duty is 6.4 percent ad valorem and the
textile restraint category is 351. If the subject garments are
imported together in equal numbers of matching tops and bottoms,
they will be classified in subheading 6207.21.0010, HTSUSA, which
provides for men's cotton woven pajamas with two or more colors
in the warp and/or the filling. The applicable rate of duty is
9.3 percent ad valorem and the textile restraint category is 351.
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 Quotas
(Restraint Levels), an internal issuance of the U.S. Customs
Service, which 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 applicable to textile
merchandise, you should contact your local Customs office prior
to importing the merchandise to determine the current status of
any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division