CLA-2 RR:TC:TE 960432 jb
6203.42.4050
Eleanor 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 2, 1997, and
subsequent submission of August 5, 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 five sample garments,
all constructed of a woven cotton flannel fabric. Style numbers
were not given for the subject merchandise. The submitted top
features long sleeves with cuffs, a full frontal opening secured
by a five button closure, a pointed collar, and a breast pocket.
The submitted shorts feature a fully elasticized enclosed
waistband, side seam pockets, and cuffs. The shorts do not have
a fly. Two styles of pants are also at issue. You state that
the subject shorts and pants can be coordinated with the top. We
note that the one pair of pants and the shorts are made of a
different color flannel plaid material than the top at issue.
For purposes of this ruling, Customs is assuming that if the
pants are to be coordinated with the top, at the time of
importation, the tops and bottoms will be comprised of identical
flannel fabric. One style pant has an exposed elastic waistband,
no fly, elastic at the pant legs, and two side seam pockets. The
other style pant contains a covered elastic waistband, no fly,
and elastic at the pant legs.
All of the pants and the shorts are available without
pockets and with a fly opening secured by one button.
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 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 combined 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.
You indicate in your letter that the subject bottoms feature
no fly and side seam pockets or no fly and no side seam pockets.
You also indicate that these bottoms are available with a one
button closure and no side seam pockets or one button closure and
side seam pockets. With respect to the bottoms that will feature
no fly and side seam pockets, it is the opinion of this office
that bottoms with the combination of those two features are not
indicative of a sleepwear bottom but a multi-purpose garment that
may (and probably will be) worn for purposes other than sleeping.
These bottoms can easily make the transition from inside the home
(a private setting) to outside the home (and a more social
environment). The lack of fly makes them suitable for modesty
purposes and the presence of pockets makes them a comfortable and
useful outerwear garment to carry keys, money, identification and
similar small objects. Additionally, even for those garments that
lack both the fly and the side seam pockets, we find the absence
of the fly on these bottoms indicative of a multi-purpose
garment.
You make reference to HQ 089247, dated July 18, 1991, which
classified virtually identical merchandise as sleepwear in
heading 6207. This office is in the process of reviewing that
ruling to ensure uniformity with Customs classification for that
merchandise. Furthermore, we bring your attention to
International Home Textile, Inc., Slip Op. 94-06-00347, 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, non-private 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...
As such, we find that these garments are properly classified in
heading 6203, HTSUS.
However, in the situation where the bottoms will feature a
fly with substantial one button closure and no side seam pockets,
or a one button closure and side seam pockets, we agree that
these bottoms give the appearance of and will be used primarily
as sleepwear. This is substantiated by the line of court cases
cited above which find support for classification in the
marketing and advertising of the garments, and most importantly
the appearance of the garments themselves. 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 featuring a fly
and no side seam pockets or a fly and side seam pockets are
imported together in equal numbers, they will be classified as
pajamas under Heading 6207, HTSUSA. If however, unequal numbers
of tops and bottoms featuring a fly and no side seam pockets or
fly and side seam pockets 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 under 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 knee 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:
If the tops or bottoms with fly and no side seam pockets or
fly and side seam pockets 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 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 with fly and no side seam
pockets, or fly and side seam pockets, 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.
If the bottoms feature no fly and side seam pockets or no
fly and no side seam pockets, they will be classified as follows:
the pants are classified in subheading 6203.42.4015, HTSUS, which
provides for men's cotton trousers, other. The applicable rate
of duty is 17.4 percent ad valorem and the quota category is 347;
the shorts are classifiable in subheading 6203.42.4050, HTSUS,
which provides for men's cotton shorts, other. The applicable
rate of duty is 17.4 percent ad valorem and the quota 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 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