HQ 964178

August 28, 2002

# CLA-2 RR:CR:TE 964178 RH

CATEGORY: Classification

TARIFF NO.: 6203.42.4015

Port Director

U.S. Customs Service

300 South Ferry Street

Los Angeles, CA 90731

RE: Protest Number 2704-00-100510; Heading 6203; Sleepwear vs.

Loungewear; Men's Pants

Dear Sir:

This is in reply to your memorandum of April 19, 2000, forwarding
Application for Further Review of Protest (AFR) number 2704-00-100510 to
our office for a decision.

Counsel for the protestant timely filed the AFR on February 24, 2000,
against "Customs decision to demand redelivery \[of one entry\] of men's
cotton woven pajama bottoms. . . and to require the importer to classify
the garments under HTSUS 6203.42.4015 and to obtain a new visa for
textile category designation 347."

Counsel maintains that Customs decision is inconsistent with
Headquarters Ruling Letter (HQ) 957862, dated December 21, 1995, and New
York Ruling Letter (NY) C81827, dated November 21, 1997.

Review of the protest is warranted pursuant to 19 CFR §§174.24 and
174.25.

FACTS:

The merchandise at issue is a pair of men's woven pants made of 100
percent cotton, style ZSO1-27001. The pants have a covered elasticized
waistband with a drawtape, two side seam pockets, two side cargo
pockets, and a one-buttoned fly.

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On January 18, 2000, the protestant entered one entry of the subject
merchandise at the Los Angeles Seaport. On January 25, 2000, Customs
released the merchandise. However, after examining a sample of the
merchandise and determining that it was misclassified, Customs issued a
Notice

to Redeliver (Customs Form 4647) on January 26, 2000, instructing the
protestant to provide a visa certificate for category 347 for the
merchandise in question.

# We note that the protestant failed to redeliver the merchandise and the proper visas were never provided to Customs. 

Counsel maintains that the merchandise is properly classified under
subheading 6107.91.0030[^1] of the Harmonized Tariff Schedule of the
United States (HTSUS), as sleepwear.

ISSUE:

Are the garments described above classifiable under subheading
6203.42.4015, HTSUS, as men's pants, or under subheading 6207.91.3010,
HTSUS, as sleepwear?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules
of Interpretation (GRIs). GRI 1 provides that classification shall be
determined according to the terms of the headings and any relative
section or chapter notes. Where goods cannot be classified solely on the
basis of GRI 1, the remaining GRIs will be applied in their appropriate
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 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.

Classification of garments as sleepwear is based upon use. Additional
U.S. Rule of Interpretation 1(a), HTSUS, provides that in the absence of
special language or context to the contrary, a tariff classification
controlled by use, other than

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actual use, is to be determined by the principal use in the United
States at, or immediately prior to, the date of importation of goods of
the same class or kind of merchandise.

In determining the classification of garments submitted to be sleepwear,
Customs considers factors discussed in several decisions by the Court of
International Trade. In *Mast Industries, Inc. v. United States*, 9 Ct.
Int'l Trade 549, 552 (1985), aff'd 786 F.2d 1144 (Fed. Cir. 1986) the
Court of International Trade cited several lexicographic sources, among
them *Webster's Third New International Dictionary* which defined
"nightclothes" as "garments to be worn to bed." The court determined
that the garment at issue in that case was designed, manufactured and
used as nightwear and, therefore, was classifiable as nightwear.
Similarly, in *St. Eve International, Inc. v. United States*, 11 Ct.
Int'l Trade 224 (1987), the court ruled that the garments at issue in
that case were manufactured, marketed and advertised as nightwear and
were chiefly used as such.

Additionally, as the court pointed out in *Mast*, "the merchandise
itself may be strong evidence of use", Id. at 552, citing *United States
v. Bruce Duncan Co*., 50 CCPA 43, 46, C.A.D. 817 (1963), and Customs has
adopted that view as the crucial factor in the classification of a
garment.

Customs also refers to the [Guidelines for the Reporting of Imported
Products in Various Textile and Apparel Categories]{.underline}, CIE
13/88 (1988), for guidance in determining whether a garment has
characteristics of sleepwear. At page twenty-four, the Guidelines state
that "the term 'nightwear' means 'sleepwear' so that certain garments
worn in bed in the daytime . . . are included."

Garments that are not sleepwear may fall into various fashion categories
besides sportswear, including "loungewear" or "leisure wear." Customs
has long held that loungewear includes a variety of loose, comfortable
casual clothes that can be worn in a variety of settings. See HQ 082624,
dated March 22, 1989. In *International Home Textile, Inc. v. United
States*, Ct. Int'l Trade Slip. Op. 97-31, dated March 18,1997, aff'd 153
F. 3d 1378 (Fed. Cir. 1998), the Court of International Trade held that
articles encompassed under heading 6107 (underpants, briefs,
nightshirts, pajamas, bathrobes, dressing gowns and similar articles)
are characterized by a sense of privateness (underpants and briefs) or
private activity (sleeping, bathing and dressing). The court pointed out
that loungewear, on the other hand, may be worn at informal social
occasions in and around the home, and for other nonprivate activities
such as watching movies with guests, barbecuing at a backyard gathering,
doing outside home and yard maintenance work, washing the car, walking
the dog, etc. It is important to note that the parties stipulated that
the garments in *International Home Textile* were

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considered "loungewear" and the issue was whether "loungewear" was
classifiable as outerwear or as sleepwear. The court found that the
garments in that case were primarily used for lounging and not for
sleeping. Thus, when ruling on similar merchandise Customs policy has
been to carefully examine the physical characteristics of the garment in
question. When this has not proven substantially helpful, we consider
other extrinsic evidence 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, i.e., 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 factor 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*, 16 Ct. Int'l Trade 407 (1992).

Counsel argues that the pants are ordered, designed, expressly
manufactured, marketed, sold and worn as men's pajamas. He states that
the pants are loose fitting and have "extra-long" legs. Customs National
Import Specialist for this commodity examined the merchandise, marked as
a size large. The inseam measured 30 inches, which is not extra-long, or
even long, by industry standards.

Additionally, counsel cites two rulings to support his claim that the
instant garments are sleepwear. In HQ 957862 and NY C81827, Customs
classified bottoms as sleepwear based on the advertising and marketing
material, in conjunction with the design of the men's matching tops. In
the instant case, only bottoms are imported and they possess features
not generally associated with sleepwear, such as large cargo pockets on
each leg. This feature is typical of outerwear and not generally
considered suitable for garments intended to be used for the primary
activity of sleeping.

Moreover, Customs has consistently classified garments similar to the
ones at issue featuring a one-button fly, side seam pockets, an
elasticized covered waist and a drawstring, as loungewear. See NY
F81111, dated January 5, 2000; NY F82223, dated February 9, 2000; NY
F85677, dated May 3, 2000; NY F86113, dated April 28, 2000; NY F87264,
dated June 8, 2000; HQ 958594, dated January 26, 1996.

The protestant submitted one letter from the Director of Marketing of ZG
Sport (the seller of the pants), which states that he is responsible for
the creation and

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marketing "of all loungewear sold" by that company. The letter further
reads:

Loungewear is updated, fashion sleepwear and consists of jams, pants,
matching tops, t shirts and robes; loungewear has superceded pajamas.
Loungewear is primarily worn to bed and is put on after coming home from
work, while hanging out at home with family. As such, lounge bottoms
often have pockets for the wearer's convenience, much like a robe does.
. . .

We agree that the bottoms in question are loungewear garments and are
typical of the type of garments worn at informal social occasions and
for the other nonprivate activities, as discussed in *International Home
Textile*.

Finally, since the garments themselves are a potent witness, we are not
persuaded by the advertising and marketing material counsel submitted in
support of the protestant's claim that the bottoms are sleepwear.

Based on the foregoing, we find that Customs correctly classified style
ZSO1-27001 under subheading 6203.42.4015, HTSUS, as men's pants.

HOLDING:

The protest should be DENIED. The garments in question are classifiable
under subheading 6203.42.4015, HTSUS, as men's cotton woven pants. They
are dutiable at the 2000 HTSUS general column one rate at 17 percent *ad
valorem*. The textile category is 347.

In accordance with section 3A(11)(b) of Customs Directive Number 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you
are to mail this decision, together with the Customs Form 19, to the
protestant no later than 30 days from the date of this letter.

Thirty days from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel, and to the

public on the Customs Home Page of the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division

[^1]: We assume counsel intended to cite heading 6207, as that provision
    encompasses men's **woven** sleepwear.