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HQ 963376

July 18, 2002

CLA2 RR:CR:TE 963376 SG


TARIFF NO.: 6207.91.3010

Ms. Ludene Murphree
Import Compliance Manager
Gap Inc.
One Harrison Street
San Francisco, California 94105

RE: Classification of men’s pants with open fly; sleepwear vs. outerwear

Dear Ms. Murphree:

This is in response to your letter of July 20, 1999, requesting a binding ruling on two men’s garments made in Cambodia and Indonesia, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Two samples were submitted. In addition, specifications and photos of the garments were enclosed. Also enclosed were copies of the official preclassification rulings for what you claim are identical men's sleep bottoms styles 177573, 177431, 177432, and 177424.


The sample, identified as Style 556022, is a pair of woven 100% flannel gingham pants. The pull-on pants feature an enclosed elasticized waistband with a functional drawstring on the outside; side seam pockets which are approximately 6 1/2 inches long; and a hemmed bottom. The pants have an unsecured fly opening, which is approximately 5 inches in length, starting just below the waistband.

The sample, identified as Style 566032, is a pair of woven 100% flannel plaid pants. The pull-on pants feature an enclosed elasticized waistband with a functional drawstring on the outside; side seam pockets which are approximately 6 1/2 inches long; and a hemmed bottom. The pants have an unsecured fly opening, which is approximately 5 inches in length, starting just below the waistband.


Whether the subject merchandise is properly classifiable as sleepwear under heading 6207, HTSUS, or as outerwear garments under heading 6203, HTSUS?


The General Rules of Interpretation (GRI’s) governs classification of goods under the HTSUSA. 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. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 8980, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

In order to determine whether or not the garments are sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade. In Mast Industries, Inc. v United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986) the court dealt with the classification of a garment claimed to be sleepwear and cited Webster’s Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed." In Mast, the court ruled that the garments at issue were designed, manufactured, and marketed as nightwear and were chiefly used as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled that the garments at issue were designed, manufactured, and advertised as sleepwear and were chiefly used as sleepwear.

In the recent case of International Home Textile, Inc. v. United States, Slip Op. 9731, March 18, 1997, the Court of International Trade addressed the issue of whether certain men’s garments were properly classified under the provision for cotton pants, shorts and tops or as sleepwear under the HTSUSA. The court held that in order to be classified as sleepwear, certain loungewear items must share that essential character of being for a "private activity", e.g., sleeping. The court also stated that garments classified as sleepwear would be inappropriate for use at "... informal social occasions in and around the home, and for other individual, nonprivate activities in and around the house e.g., watching movies at home with guests, barbecuing at a backyard gathering, doing outside home and yard maintenance work, washing the car, walking the dog, and the like."

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 selfserving as was noted by the court in Regaliti, Inc. v. United States, 16 CIT 407 (May 21, 1992). We have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outwear. See Headquarters Ruling Letter (HQ) 955341 of May 12, 1994.

In the instant case, a physical examination of the garments at issue reveals that the design, although somewhat ambiguous due to the styling features, in light of the unsecured fly, makes them unsuitable for modesty purposes. An open fly is a feature whose essential character is privateness or private activity, which is indicative of sleepwear and pajamas. An unsecured fly does not satisfy the conventional standards of modesty necessary on a garment that would be worn for the type of non-private activities named in International Home Textiles, Inc. In addition the materials submitted describe each of the garments as “PJ pant” .

Although the subject garments could possibly be used for social activity inside the home, it is our view that because of the unsecured fly; it would be inappropriate to wear these garments while participating in any "... nonprivate activities in and around the house.". It is our view that this use would be a fugitive use. In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade stated: “The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function.” In this case, because the submitted samples are capable of being used to lounge inside the home does not change what is their principal use and character as sleepwear. Thus, it is our determination that these garments have the essential character of privateness, i.e. of being used for the private activity of sleeping. They are therefore properly classifiable as sleep garments, not loungewear. See HQ 963519, dated July 16, 2002, wherein we ruled that almost identical pants were classified as sleepwear.

Heading 6207, HTSUS, provides for, inter alia, pajamas and similar articles. Customs has consistently ruled that pajamas are generally twopiece garments worn for sleeping, one-piece garments such as these under consideration have been classified as other woven sleepwear.


The instant merchandise is properly classifiable under the provision for "Men’s or boys’ singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gown and similar articles: Other: Of cotton: Other: Sleepwear”, in subheading 6207.91.3010, HTSUSA, and are dutiable under the general column one rate of 6.2 percent ad valorem. The textile category for this provision is 351.

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. The Status Report on Current Import Quota (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.treas.gov.

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.


Myles B. Harmon, Acting Director
Commercial Rulings Division

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