HQ 960690
SEP 25 1998
CLA-2 RR:CR:TE 960690 SG
TARIFF NO: 6203.42.4015; 6203.42.4050; 6205.20.2046
Patrick D. Gill, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Classification of men's garments; sleepwear vs. loungewear
Dear Mr. Gill:
This is in response to your letter of June 13, 1997, on
behalf of your client, Hampton Industries, requesting a binding
classification ruling on five men's garments and two carrying
pouches manufactured in Pakistan, pursuant to the Harmonized
Tariff Schedule of the United States (HTSUS). We are advised
that the garments are marked with the "Chereskin Sleepwear"
label.
We are in receipt of your letter dated September 11, 1998,
withdrawing your ruling request because your client is dropping
the "Chereskin" label from its line. We have determined to issue
the ruling despite this due to the amount of interest in the
distinction between sleepwear and loungewear as well as the novel
issue raised by the pouches with which the garments will be
imported.
FACTS:
Five samples were submitted along with a statement from a
vice president of RonChereskinStudio regarding the nature of the
license agreement. Also submitted was a catalogue used in
marketing. A letter from a senior buyer of the Dayton Hudson
Corp., is also enclosed.
Style 120252 is a man's woven cotton flannel shirt. It has
a pointed notched collar, a full frontal opening with a four
button closure, a breast patch pocket, hemmed long sleeves, and a
hemmed bottom.
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Style 120253 is a man's woven cotton flannel pullover shirt.
It has a partial opening at the neckline with a three button
closure, a notched rounded collar, breast pocket, long hemmed
sleeves with a one button tab, and a hemmed bottom with side
vents.
Style 120255 is a man's woven cotton pullover shirt. It has
a round neckline with a banded collar, a partial opening at the
neckline with a three button closure, a breast patch pocket,
hemmed short sleeves, and a hemmed bottom.
Style 120251 is a pair of men's woven cotton flannel shorts.
It has a partially elasticized waist with a one button closure, a
placketed fly front opening with a three button closure, a hemmed
bottom and side vents.
Style 120254 is a pair of men's woven cotton flannel pants.
It has an exposed elasticized waistband with the word "Chereskin"
embroidered on it at recurrent intervals. It has a placketed fly
front opening with a three button closure, diagonal side seam
pockets and hemmed leg bottoms.
Two carrying pouches were also submitted. The bags have
flaps which are secured by a one button front closure. They have
self-fabric shoulder straps and a "Chereskin" label on the front
flap.
You indicate that the garments are designed, manufactured,
and are marketed by Hampton as sleepwear garments; and their
chief use is as sleepwear. You state that the garments are sold
separately so that a customer can buy different sizes or styles
in the tops and bottoms. It is your position that both the loose
fit of the garments and the flannel fabric support classification
as sleepwear garments. In addition, you contend that the
garments imported together in shipments containing equal numbers
of tops and bottoms with matching pouches are classifiable as
pajamas in subheading 6207.21.0010, HTSUSA, as men's pajamas. If
imported separately, you state that the shorts, pants and
matching tops with flannel pouches are classifiable in subheading
6207.91.3010, HTSUSA. Alternatively, you contend that sleep tops
with matching flannel pouches when imported alone are
classifiable in subheading 6207.21.0010, HTSUSA, as nightshirts,
due to their oversize styling.
ISSUE:
Whether the subject merchandise is properly classifiable as
sleepwear under Heading 6207, HTSUS, or as outerwear garments
under heading 6203, HTSUS and 6205, HTSUS, as appropriate?
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
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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 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 and tops 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; and, for the tops, heading 6205,
HTSUS, which provides for men's shirts.
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 boxer-style 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
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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, 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....
In the instant case, a physical examination of the garments
at issue reveals several features which make them suitable for
modesty purposes. The pants have slanted side pockets; the
shorts and pants have fly openings with substantial three button
closures and hidden plackets, and
hemmed leg bottoms. A substantial three button fly closure is
not a useful feature on sleepwear, but on loungewear or a
multipurpose garment it serves to ensure modesty. This, as well
as the other features listed above, are not indicative of
sleepwear, but of multi-purpose 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. In
addition, 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 958594 dated
January 26, 1996, in which we held that a placketed fly opening
with a substantial one button closure on similar bottoms was
indicative of multi-purpose garments which will be worn for
purposes other than sleeping.
In addition, all the samples submitted are made of fabric
heavy enough for outdoor use even in cool weather. Flannel is
now a fabric associated with many uses other than sleepwear,
e.g., work shirts. 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."
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,
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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
self-serving as was noted by the court in Regaliti, Inc. v.
United States, Slip-Op. 92-80 (May 21, 1992).
In this case, additional information has been submitted
which indicates specifically how the garment will be displayed
and sold in the intimate apparel department of your store. In
addition, the garment has a sewn in label indicating it is a
sleepwear garment. In Mast, 9 CIT 549, at 551, the court pointed
out that the expert witnesses in that case agreed "that most
consumers purchase and use a garment in the manner in which it is
marketed." The sewn in label is a factor to be considered in
determining how this garment is marketed and likely to be used by
purchasers, though it is not determinative in and of itself.
However, based on our examination of the garments supplied,
we find that they are loungewear, i.e., loose, casual clothes
that are worn in the home for comfort. Their fabric,
construction and design are suitable for the type of nonprivate
activities named in International Home Textile, Inc. Finally,
although the garments may be worn to bed for sleeping, in our
opinion their principal use is for lounging.
You contend that the top, due to its oversized styling, is
classifiable in subheading 6207.21.0010, which provides for
nightshirts and pajamas, when imported alone. 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, HTSUS.
In so far as the pouches are concerned, you indicate that
the bottom or top may be packaged inside a matching flannel bag
and the garments and bag are sold together at retail. In
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HQ 955787 of April 26, 1994, Customs classified a pair of men's
flannel boxers sold inside a matching carrying bag. In that
ruling, Customs classified the carrying bag and shorts as a
composite good. We stated therein:
In HRL 087280, dated July 16, 1990 we addressed the
tariff classification of a carrying bag imported with a
poncho. The carrying bag was not specially shaped or
fitted
to hold its contents and was suitable for repetitive
use.
We concluded that the poncho and the bag constituted a
composite article pursuant to General Rule of
Interpretation
3(b), with the poncho imparting its essential
character.
Similarly, in HRL 086343, dated July 13, 1990, we
classified
a carrying bag sold with a windbreaker as a composite
article with the essential character imparted by the
garment. Recently, we classified a textile drawstring
bag
imported with blocks as a composite article and
concluded
that the blocks lent the essential character to the
unit.
The instant carrying bag is sold as a unit with the
boxer
shorts. It is not specially shaped or fitted to hold
its
contents and is suitable for repetitive use. Based
upon the
foregoing precedent the carrying bag and shorts shall
be
classified as a composite article. The shorts lend the
essential character to the unit. Accordingly, the
carrying
bag shall be classified with the shorts.
As this case is virtually identical to the situation in HQ
955787, i.e., shorts/pants or tops in a bag, the goods at issue
here are classified as composite goods and the shorts/pants or
tops impart the essential character.
HOLDING:
The bottoms with a placketed fly opening with a substantial
three button closure, side seam pockets, and hemmed leg bottoms
are 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 applicable general rate of duty is 17.3 percent ad valorem
and the textile quota category is 347.
The submitted men's shorts and the matching flannel bag, are
classified as composite goods. The goods are classified
according to the classification for the shorts. The shorts are
classified as men's woven cotton shorts in subheading
6203.42.4050, 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:
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Of cotton: Other: Other: Shorts: Men's." The applicable rate of
duty is 17.3 percent ad valorem and the textile quota category is
347.
The submitted shirts and matching flannel bag are classified
under subheading 6205.20.2046, HTSUSA, which provides for "Men's
or boys' shirts: Of cotton: Other: Other: Other: With two or more
colors in the warp and/or filling: Napped." The applicable rate
of duty is 20.5 percent and the textile quota category is 340.
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.
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