HQ 966345

February 6, 2004

CLA 2 RR: CR: TE 966345 SG

CATEGORY: Classification

TARIFF NO: 6203.42.4015; 6203.43.4010

Port Director

1500 Port Boulevard\
Suite 15\
Miami, FL 33132

RE: Application for Further Review of Protest No. 5201-02-100807;
Classification of Certain Men's Garments; Sleepwear vs. Loungewear

Dear Sir:\
\
This is in response to the request for further review of Protest No.
5201-02-100807 timely filed on September 30, 2002, by Sandler, Travis &
Rosenberg, on behalf of their client, Wilk Shirt Corp. (Wilk), against
liquidation of certain men\'s garments as lounge pants of heading 6203,
Harmonized Tariff Schedule of the United States (HTSUS). The protest
involves five styles of garments which were entered between June 4, 2001
and February 26, 2002. When entered, the garments were classified as
pajamas. A supplemental information letter was submitted to the port
claiming the garments should have been entered as other sleepwear. In a
Request For Information dated April 9, 2002, Wilk was asked to submit
documentation in support of its claim that the imported garments were
sleep pants. After submissions by Wilk, a meeting with their attorney,
and an examination of samples provided, Customs and Border Protection
(CBP) determined that the merchandise was not sleepwear.

The protest challenges CBP\'s liquidation of the garments as outerwear
under subheading 6203, HTSUS. Counsel maintains that CBP\'s decision
conflicts with previous decisions of CBP.

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

FACTS:\
\
The styles involved in the above protest are listed below:\
\
Style OC2085 is a 100 percent cotton woven pant with a covered
elasticized waistband through which an interior braided drawcord is
threaded, two side seam pockets and a

one-button fly. The fly opening, starting immediately under the
waistband, measures 6 inches. There is an exposed button set at the
3-inch mark for closure. The fabric is a checked gingham material. The
garment has a \"Cassini loungewear\" label sewn on the waistband above
the fly and a hemmed bottom. There is a hangtag on the garment bearing
the words \"Cassini loungewear\". The garment has a paper label attached
to the waistband sizing the garment as Large and 36-38, and a fabric
label with the same sizing information inside the waistband.

Style OC2032 is a 100 percent woven polyester \"microfiber\" pant with a
covered elasticized waistband through which an interior braided drawcord
is threaded, two side seam pockets and a one-button fly. The fly
opening, starting 1/2 inch under the waistband, measures 6 inches. There
is an exposed button set at the 3-inch mark for closure. The garment has
a \" Cassini loungewear\" label sewn on the waistband above the fly and
a hemmed bottom. There is no hangtag on the garment, however the garment
has a fabric label inside the waistband sizing the garment as Medium and
32-34.

Style LP2219 is a 100 percent woven cotton pant. The fabric is napped
flannel. The garment features a covered elasticized waistband through
which an interior braided drawcord is threaded, two side seam pockets
and a one-button fly. The fly opening, starting 1/4 inch under the
waistband, measures 5 3/4 inches. There is an exposed button set at the
3-inch mark for closure. The button features a dog\'s (boxer) face
wearing a hat. The garment has a \"Boxer Boxer\" label sewn on the
waistband above the fly and a hemmed bottom. There is no hangtag on the
garment, however a tag with the \"Boxer Boxer\" logo has been stapled to
the waistband. The garment has a paper label attached to the waistband
sizing the garment as Medium and 32-34, and a fabric label with the same
sizing information inside the waistband.\
\
Style LP2222 is a 100 percent woven cotton pant. The fabric is napped
flannel. The garment features a covered elasticized waistband through
which an interior braided drawcord has been threaded, two side seam
pockets and a one-button fly. The fly opening, which starts immediately
beneath the waistband, measures 6 inches. There is an exposed button set
at the 3-inch mark for closure. The button features a dog\'s (boxer)
face wearing a hat. The garment has an American flag label sewn on the
waistband above the fly and a hemmed bottom. There is no hangtag on the
garment. The garment has a paper label attached to the waistband sizing
the garment as Large and 36-38, and a fabric label with the same sizing
information inside the waistband.\
\
Style LP266A (also referred to as 2666A) is a 100 percent woven cotton
pant. The fabric is napped flannel. The garment features a covered
elasticized waistband through which an interior braided drawcord has
been threaded, two side seam pockets and a one-button fly. The fly
opening, starting immediately below the waistband, measures 6 inches.
There is an exposed button set at the 3-inch mark for closure. The
garment has a \"Boxer Boxer\" label sewn on the waistband above the fly
and a hemmed bottom. There is a hangtag with the \"Boxer Boxer\" logo
attached just below the waistband. The garment has a paper label
attached to the waistband sizing the garment as Medium and 32-34, and a
fabric label with the same sizing information inside the waistband.

The importer is of the opinion that the merchandise should be properly
classified as sleepwear of heading 6207, HTSUSA.\
\
ISSUE:\
\
Whether the subject merchandise is properly classifiable as sleepwear
under Heading 6207, HTSUS, or as outerwear garments under heading 6203,
HTSUS?

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 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 are not classifiable as pajamas. Sleep shorts and sleep pants
used for sleeping 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 is heading 6203, HTSUS,
which provides for, inter *alia*, men's trousers and shorts.\
\
Counsel argues that based on their features (one-button fly openings of
6 inches or less with no opening on the fly exceeding 3 inches and two
side seam pockets), the Wilk garments are classifiable as sleepwear in
heading 6207 since they will be principally used for sleeping. Counsel
further argues that CBP has consistently based its classification on the
\"sample\'s physical characteristics\". Counsel states that the bottoms
at issue possess all the features found in HQ 963906, dated April 4,
2001, to be congruous with \"classification as men\'s pajamas.\"
Protestant has submitted documentation which they claim reflects that
these garments were made to loose fitting pajama specifications, that
they are sold only to sleepwear buyers, and that they will be marketed
and sold as sleepwear pants. Counsel contends that a fabric weight of
less than 4.2 oz./sq. yd. is indicative of sleepwear. Protestant argues
that since the classification decision on liquidation of the subject
entries conflicts with previous decisions of CBP, further review is
warranted. In support thereof counsel submits a \"Summary of Sleepwear
Rulings\" and a \"Summary of Loungewear Rulings\" which are said to
summarize the rulings in which CBP classified garments as loungewear or
sleepwear. 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 a number of 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}., 21 CIT 280, (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 (now CBP) 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, CBP 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.

In addition to the criteria listed above, CBP will also consider the
general criteria set forth [in United States v. Carborundum
Company]{.underline}, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976),
[cert. denied]{.underline}, 429 U.S. 979, to determine whether a
particular good belongs to a particular class or kind of goods, such as
sleepwear. Those criteria include the general physical characteristics
of the article, the expectation of the ultimate purchaser, the channels
of trade, the environment of sale (accompanying accessories, manner of
advertisement and display), the use in the same manner as merchandise
which defines the class, economic practicality of so using the import,
and recognition in the trade of this use.

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 CIT 407 (May 21, 1992).

The protestant has presented the following arguments as the basis for
the garments being classified as sleepwear:

● **Design**- All of the garments have the same features-an elasticized
waist with functional drawstring, side seam pockets, one-button fly
closure with no placket, and hemmed bottoms. It is argued that
examination of the Wilk garments reflects that men would not likely wear
these garments in any non-private activity because the wearer would not
be considered modestly dressed due to the one-button fly not hidden by a
placket. It is conceded that these garments may be worn while eating
breakfast but argued that such activities would be private and the
garments would be worn primarily for sleeping.

Although protestant claims the garments were designed as sleepwear, no
specific information concerning the design was submitted. Nothing about
the design of the garments makes them unsuitable for use as sleepwear.
However, the counter argument that nothing about the design makes them
unsuitable for use as general apparel is equally true. In such
circumstances, the principal use is determined by the manner in which
the garments are designed, marketed and sold.

● **Fabric**-Counsel for protestant states that the weight of the fabric
is critical in the classification of these garments. It is stated that
all of the Wilk garments are made of lightweight fabrics typically used
in the manufacture of pajamas and that the same fabric is used in
Wilk\'s sleep pants, pajamas and robes. Counsel states that where CBP
has found the garment is classifiable as loungewear, in many cases it
was noted that the fabric was heavy enough for outdoor use. Counsel goes
on to state that CBP\'s classification of garments as sleepwear has been
partially based on the fact that the garments were made of
\"light-weight fabric\". Protestant contends that most of Wilk\'s pants
are made of fabrics with a fabric weight of less than 4.2 oz. per square
yard, and should be considered lightweight. Counsel contends that a
fabric weight of less than 4.2 oz./sq. yd. is indicative of sleepwear
and cites HQ 955787, dated April 26, 1994, and HQ 954632, dated October
27, 1993, in support of this contention. The issue in the cases cited by
counsel was whether boxer-styled briefs were shorts or underwear. Seven
features, one of which was fabric weight greater than 4.2 ounces per
square yard, were recognized as indicative of non-underwear garments.
The rulings cited by counsel stated that \"(b)oxer shorts which display
more than one of the seven features are presumptively not underwear.\"
The cited rulings went on to state that \"...this presumption is
rebuttable where it can be shown that criteria such as marketing or
other physical attributes are determinative.\" We note that fabric
weight is one of seven characteristics to be considered. We note
additionally that the seven features are for boxer shorts, not pants,
which are the garments under consideration here. Counsel is attempting
to use criteria that was never intended to be used for pants.\
\
● **Specifications**-Counsel states that the sizing specifications for
sleep bottoms are the same as for the bottoms that are part of pajamas.
A size specification sheet showing that \"men\'s lounge pants\" and
men\'s pajama pants have identical specifications by size was submitted.

● **Documentation**- Counsel states that Wilk sells these garments to
low-end mass marketers and only to sleepwear buyers. It is claimed that
the term loungewear is used indiscriminately, and the garments, despite
being purchased and/or labeled as loungewear are intended to be used
primarily for sleeping.

Counsel submits letters from two customers/buyers stating that they
purchase woven long pajama pants from Wilk and that the garments are
located in their underwear/pajama departments. CBP has 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. In addition, copies of
advertisements from 2002 (the time frame of the importation of these
garments) show what appear to be identical garments advertised as lounge
pants.

Counsel submits a number of Wilk purchase orders. All the purchase
orders describe the model of the garments ordered as \"lounge pants\".
It is claimed that although the garments will be labeled with the word
\"loungewear\", the sizing specifications to be used are for boxer sleep
pants, and that this is a clear indication that sleep pants were
ordered. It is further claimed that letters from customers state that
they are buying pajama pants. A purchase order identifying a garment as
a \"Flannel PJ pant\" is offered in support thereof. We note that the
style numbers on the submitted purchase order do not correspond with the
style numbers on the garments that are the subject of this protest. A
second purchase order was also submitted. We note that although it
refers to a lounge pant, and the general code of \"PJP\" is stated to
refer to a pajama pant, it contains no style numbers, we are unable to
ascertain whether it refers to the garments at issue.

● **Sleepwear Rulings**-Counsel submitted a list of CBP rulings that are
said to support classification of the instant merchandise as sleepwear.
It is claimed that these rulings have the same features as the Wilk
garments.

NY 856761, dated October 26, 1990, NY H87049, dated January 16, 2002,
and HQ 960432, dated August 22, 1997, listed by counsel, deal with
shorts, and do not share identical characteristics of the protested
garments. In addition, in HQ 960432, substantial evidence was submitted
indicating that the garments were designed, marketed, and sold as
sleepwear. While in NY H87049, the garment was constructed with an extra
seat panel in the rear to afford roominess. This information and
features led CBP to determine that these garments would be used
principally as sleepwear.

In NY C81465, dated November 21, 1997, and NY C88210, dated June 12,
1998, extensive advertising and marketing data were submitted indicating
that the subject garments were designed, marketed, and sold as
sleepwear. The marketing information when considered along with the
garments themselves led CBP to determine that these garments would be
used principally as sleepwear.

In HQ 962703, dated November 2, 2000, the garment had an open fly and no
closure. CBP determined that the unsecured fly, made the garment
unsuitable for modesty purposes inasmuch as 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.]{.underline}

In HQ 963906, dated April 4, 2001, the garment possessed a fly opening
which was secured by a one-button closure. CBP noted that both the
button and the buttonhole were very close to the outside edge of the
placketed fly. This allowed very little overlapping of the fabric around
the opening, resulting in the fly front gaping open when the garment is
worn. The presence of the fly front with an insubstantial one button
closure which gaped when worn was determined by CBP as not providing the
type of coverage that would enable the pants to be worn as outerwear.

Lastly it is argued that based upon their features and physical
characteristics, the Wilk garments are classifiable as sleepwear.

We have physically examined the garments at issue and do not agree that
the physical characteristics of the garments, nor the manner in which
they have been designed, marketed or sold are limited to sleepwear or
intimate apparel. 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, a fly opening with a
secure one-button closure, and hemmed leg bottoms. As we have stated
previously, a substantial (or secure) one button fly closure is not a
useful feature on sleepwear, but on loungewear or a multi-purpose
garment it serves to ensure modesty. In addition, we note that the
waistband of the garments subject of this protest are both elasticized
and have functional drawstrings. A waistband that is both elasticized
and contains a drawstring is not needed on a sleepwear garment. See HQ
963767, dated July 16, 2002. 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}.

In addition, we note that two of the garments (Styles OC2085 and OC2032)
have \"Cassini loungewear\" labels sewn on the outside front of the
waistband just above the fly, as well as hangtags on the garments
bearing the words \"Cassini loungewear\". While not dispositive, these
labels and tags shed light on what the manufacturer views the
merchandise to be and of the market the importer is trying to reach. In
our view these garments are clearly being presented as loungewear.

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. These garments 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 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.

Based on our examination of the garments and the \"Cassini loungewear\"
labels and hangtags found on Style OC2085 and Style OC2032, and the
purchase orders supplied by the protestant which describe all five of
the protested garments as \"lounge pants\", 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}. CBP
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. 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.

Protestant alleges that we have been inconsistent in our rulings. In an
effort to determine whether we have been inconsistent in our
classification of sleepwear bottoms, a review of all
sleepwear/loungewear rulings in the Customs Rulings Online Search System
(CROSS) was undertaken. We ascertained that classification is based on
principal use in the United States at time of importation of goods of
same class or kind. In each ruling issued by this office or NY, the
garment was looked at as strong evidence of use. All the physical
features of the garment (fly opening, side pockets, hangtags) were
considered. When the garment itself was ambiguous, we considered other
factors such as environment of sale, advertising, marketing, and
recognition in the trade of virtually identical merchandise. The manner
in which an article was sold and marketed was weighed in conjunction
with other factors such as the physical characteristics of the garment.

The major precept in all these rulings was that sleepwear is
characterized by privateness (open or unsubstantial one button fly),
while non-sleepwear garments are loose, comfortable clothes that can be
worn in a variety of informal settings in or around the home (generally
no fly or substantial one or more than one button closure, side
pockets). Garments marketed as having multiple uses, including sleeping,
were not classified as sleepwear. Our review indicated that our rulings
were not inconsistent, but were done on a case by case basis, having
taken into account [Mast]{.underline}, [St. Eves]{.underline} and
[Carborundum.]{.underline}

HOLDING:

The protest should be in DENIED.\
\
The men\'s woven pants, made of cotton, with substantial one-button fly
opening, 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 general column one rate of duty in
2001

was 16.9 percent ad valorem, the general column one rate of duty in 2002
was 16.8 percent ad valorem. The textile quota category is 347.

The men\'s woven pants, made of synthetic fibers, with substantial
one-button fly opening, side seam pockets, and hemmed leg bottoms are
classified in subheading 6203.43.4010, 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 synthetic
fibers: Other: Other; Other: Other: Trousers and breeches: Men's.\" The
general column one rate of duty in 2001 was 28.4 percent ad valorem, the
general column one rate of duty in 2002 was 28.3 percent ad valorem. The
textile quota category is 647.

In accordance with Section IV of the [Customs Protest/Petition
Processing Handbook]{.underline} (CIS HB, January 2002, pp.18 and 22),
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 or entries in accordance with the decision
must be accomplished prior to mailing of the decision.

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

Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division