HQ 964031

August 21, 2002

CLA‑2 RR: CR: TE 964031 SG

CATEGORY: Classification

TARIFF NO: 6105.10.0010; 6103.42.1020; 6103.42.1050

Port Director, Los Angeles-Long Beach Seaport

33 S. Ferry Street

Terminal Island, CA 90731

RE: Application for Further Review of Protest No 2704-00-100631;
Classification of Men's Knit Garments; Sleepwear vs. Loungewear

Dear Sir:

This is in response to the request for further review of Protest No.
2704-00-100631 timely filed on March 10, 2000, by Elon A. Pollack, Esq.,
on behalf of his client, Label Marketing, Inc. against a Notice to
Redeliver. The protest involves three styles garments, two men\'s upper
body garments, and two pairs of pants (which have same style number)
which were entered on January 21, 2000.

When entered the garments were classified as follows: the pants as
sleepwear in subheading 6107.91.0030, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), and 6107.21.0010, HTSUSA,
respectively; one top was classified as a man\'s pullover in subheading
6110.20.2030, HTSUSA; and the other as a men\'s night shirt in
subheading 6107.21.0010, HTSUSA. The merchandise was released on
February 1, 2000. On February 23, 2000, after examination of samples
taken from the shipment, it was determined that the merchandise was not
sleepwear. Therefore the submitted visas were unacceptable. A notice
demanding new visas or redelivery was sent to the importer on February
23, 2000.

The protest challenges Customs demand that the importer reclassify the
garments as outerwear: the pants under subheading 6103.42.1020, HTSUSA;
one top as a men\'s shirt of subheading 6105.10.0010, HTSUSA, the other
as a pullover under 6110.20.2065, HTSUSA. The importer has protested the
classification and claims the proper classification of these garments is
as sleepwear under subheading 6107.91.0030, HTSUSA.

FACTS:

The styles involved in the above protest are listed below:

Style ZS01-17023 is an upper body garment constructed from 82 percent
cotton/18 percent polyester knitted fabric. The garment is sleeveless,
has a scoop neck with a sweat patch at the rear neckline, a hood through
which a drawstring is drawn, a \"High Sierra\" label is sewn onto the
front left side of the garment approximately two inches from the bottom
of the garment, and a hemmed bottom.

Style ZS01-17020 is a men\'s upper body garment constructed from 82
percent cotton/18 percent polyester knitted fabric. The garment has a
Henley neckline; a four button, partial front opening; short sleeves
with rib knit cuffs, a sweat patch at the rear neckline, and a hemmed
bottom.

We note that both pairs of pants have the same style number (ZS01-17022)
and appear to be identical. Style ZS01-17022 is a men\'s pair of pants
constructed from 82 percent cotton/18 percent polyester knitted fabric.
The garment has a fly with substantial one button closure, a covered
elastic waistband with an outside drawstring, side seam pockets, and
hemmed bottoms.

The importer is of the opinion that the merchandise should be properly
classified in subheading 6107.91.3010, HTSUSA.

We note that each of the garments has a separate style number and a
separate price tag and will, presumably be sold as separates. In
addition, the National Import Specialist that handles this line has
advised that she has advertisements showing the \"High Sierra\" brand
(but not necessarily these garments) sold as outerwear and loungewear
and not sleepwear.

ISSUE:

Whether the subject merchandise is properly classifiable as sleepwear
under Heading 6107, HTSUS, or as outerwear garments under heading 6103,
HTSUS, 6105, HTSUS, and 6110, 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 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 6107, 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 are not classifiable as pajamas. Sleep shorts and sleep pants
used for sleeping fall into a residual provision within heading 6107,
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 6103, HTSUS, which provides for, inter alia, men's trousers and
shorts; and, for the top Style ZS01-17020 heading 6105, HTSUS, which
provides for men's shirts, and the top Style ZS01-17023 heading 6110,
HTSUS, which provides for men's pullovers.

Counsel indicates that the garments were manufactured exclusively for
Mervyn\'s; that Mervyn\'s markets the garments as sleepwear and sells
them exclusively in the same department that it sells underwear. Counsel
states that the bottoms at issue have many of the same features as
bottoms Customs determined were sleepwear or pajama bottoms. In support
thereof he cites Headquarters Ruling Letter (HQ) 957862, dated December
21, 1995, and New York Ruling Letter (NY) C81827, dated November 21,
1997. It is protestant\'s position that the garments are not outerwear.

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]{.underline}, 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]{.underline} which defined "nightclothes" as "garments to be
worn to bed." In [Mast]{.underline}, 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]{.underline}, 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]{.underline}, 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.

Furthermore, we bring your attention to [International Home Textile,
Inc]{.underline}., 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 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,]{.underline} \"the merchandise itself may be strong
evidence of use.\" [Mast]{.underline} at 552, citing [United States v.
Bruce Duncan Co.]{.underline}, 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,]{.underline} 16 C.I.T. 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 outerwear. See HQ 955341 of May 12, 1994.

What we find of importance is the garments themselves and the manner in
which the garments will be presented to the public.

In the instant case, a physical examination of the pants at issue
reveals several features that make them suitable for modesty purposes.
The pants have side seam pockets, fly opening with substantial
one-button closure, and hemmed leg bottoms. As we have stated
previously, a substantial one button fly closure is not a useful feature
on sleepwear, but on loungewear or a multi-purpose garment it serves to
ensure modesty. These features are not indicative of sleepwear, but of a
multi‑purpose garment that may (and probably will) be principally worn
for the type of non-private activities named in [International Home
Textiles, Inc.]{.underline}

It is protestant\'s view that the pants before us are sleepwear and in
support thereof he cites HQ 957862 and NY C81827.

In HQ 957862 bottoms with a drawstring, button fly, pockets (both side
seam and rear) were classified as sleepwear. We note that in that case a
company representative had submitted extensive advertising and marketing
data indicating that the subject garments were designed, marketed, and
sold as sleepwear. The marketing information when considered along with
the garment themselves led Customs to determine that these garments
would be used principally as sleepwear. This has not been done here.

In NY C81827, Customs classified a pajama top, pants, shorts, and robe.
Both the pants and shorts had a one-button fly front. The garments were
woven and were clearly men\'s pajamas. There was no issue of whether the
garments were loungewear or sleepwear. The issue involved was how the
garments were classified if imported in unequal numbers (i.e., if the
extra pieces were \"other sleepwear\" rather than \"pajama\").

Finally, although the pants before us may be worn to bed for sleeping,
it is our opinion that their principal use is for "home comfort" and
lounging. This garment can easily make the transition from inside the
home (in a private setting) to outside the home (and a more social
environment). In [Hampco Apparel, Inc. v. United States,]{.underline} 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." 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 a multi-purpose garment
which will be worn for purposes other than sleeping. (Also see HQ
964034, dated July 25, 2002, HQ 963767, dated July 16, 2002, HQ 963584,
dated November 18, 1999, and HQ 963577, dated November 17, 1999.)

In addition, all the samples submitted are made of fabric heavy enough
for outdoor use even in cool weather.

In our view, these garments are clearly being presented as loungewear
garments for wear other than for the primary purpose of wearing to bed
for sleeping.

We note the manufacturer\'s invoices identify the upper body garments as
\"outervest\" garments. The importer has provided no advertising showing
these garments as sleepwear. Based on all the materials before us, it is
our view that they are presented as multi‑purpose garments and, in fact,
nothing provided suggests the garments are designed or intended for wear
while sleeping. In particular we note that a hood with a working
drawstring is not a feature found on or that one would want or need on a
sleep garment. Customs does not agree that these garments are presented
to consumers as sleepwear garments; they are held out as casual
loungewear for all day wear if desired.

Based on our examination of the garments supplied, we find that they are
more likely to give the ultimate consumer the idea that they are items
of general apparel (loungewear, i.e., loose, casual clothes that are
worn in the home for comfort) rather than sleepwear. Their fabric,
construction and design are suitable for the type of nonprivate
activities named in [International Home Textile, Inc]{.underline}.
Finally, although the garments may be worn to bed for sleeping, in our
opinion their principal use is for "home comfort" and lounging.

Taking into consideration all of the information before us, especially
the garments themselves, Customs believes all of these garments are
properly classified as loungewear garments, not as sleepwear.

HOLDING:

The knit pants with substantial one-button fly opening, side seam
pockets, and hemmed leg bottoms are classified in subheading
6103.42.1020, 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: Trousers, breeches, and
shorts: Trousers and breeches: Men's." The applicable 2002 general
column one rate of duty is 16.3 percent ad valorem and the textile quota
category is 347.

The Henley shirt with four-button placket is classified under subheading
6110.20.2065, HTSUSA, which provides for \"Sweaters, pullovers,
sweatshirts, waistcoats (vests) and similar articles, knitted or
crocheted: Of cotton: Other: Other: Other: Men\'s or boys\'.\" The
applicable 2002 general column one rate of duty is 5 percent ad valorem
and the textile quota category is 338.

The sleeveless top with hood and workable drawstring is classified under
subheading 6105.10.0010, HTSUSA, which provides for "Men's or boys'
shirts, knitted or crocheted: Of cotton: Men's." The 2002 general column
one duty rate is 20 percent ad valorem. The textile quota category is
338.

The protest under consideration should be DENIED.

In accordance with Section 3A (11) (b) of Customs Directive 0993550‑065,
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 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished prior to
mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make this decision available to Customs personnel and to
the public on the Customs Home page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act and
other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division