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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.


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.


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.


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?


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

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


Mast Industries at 552, citing United States v. Bruce Duncan Co.,50 CCPA 43, 46. C.A.D. 817

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,


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


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.


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:


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.


John Durant, Director
Commercial Rulings Division

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