Classification of men’s knit loungewear garments

HQ 962440 March 19, 1999 CLA-2 RR:CR:TE 962440 gah CATEGORY: Classification TARIFF NO.: 6105.10.0010, 6103.42.1020, 6103.42.1050 Patrick D. Gill Rode and Qualey 295 Madison Ave. New York, N.Y. 10017 RE: Classification of men’s knit loungewear garments Dear Mr. Gill: This is in response to your letter of June 23, 1998, submitted on behalf of Hampton Industries, Inc., requesting a binding ruling for prospective and current shipments of men’s cotton knit coordinated upper and lower body garments. FACTS: The subject merchandise consists of three samples, referenced style 01822 T-7 (knit shirt), style 01812 T-7 (knit shorts) and style 01811 VAL-4 (knit pants). The shorts are 90 percent cotton, 10 percent polyester, fine knit jersey fabric with a 100 percent cotton woven flannel covered waistband. The shorts have a one-button fly front opening, a tunnel elastic waistband, side seam pockets and hemmed leg openings. The flannel fabric in the shirt and shorts is the same. The knit pants is thermal knit fabric with 100% cotton woven flannel covered waistband. The pants have a one-button fly front opening, a tunnel elastic waistband, side seam pockets and rib knit cuffs at the ankles. Counsel states that the pants will be imported with a thermal knit shirt that is otherwise identical to style 01822 T-7. The shirt features a baseball neckline, a partial front opening with four button closures, a stitched-down neckline facing and front placket, short hemmed sleeves and a hemmed bottom with side slits. The body of the garment is 100 percent cotton jersey knit fabric with more than ten stitches per linear centimeter, when counted in both directions. The sleeves, the placket lining and the neck facing are constructed from 100 percent cotton woven flannel fabric. You claim that the goods in question are properly classified in heading 6107, HTSUSA, as men’s pajamas or similar articles. ISSUE: Are the goods properly classifiable as men’s sleepwear in heading 6107 as men’s pajamas, or as men’s outerwear in headings 6105 and 6103. LAW AND ANALYSIS: Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification 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. Heading 6107 covers, among other things, men’s pyjamas and similar article, knitted. Heading 6105 covers men’s shirts, knitted. Heading 6103 covers, among other things, men’s trousers and shorts, knitted. Each of the garments includes trim of woven cotton flannel. The shorts and pants have flannel waistbands, and the shirt has flannel sleeves and neck and placket facings. The trim does not control classification because the knit fabric in each garment predominates. Section XI, subheading note 2(a). A tariff classification controlled by use, other than 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. Additional U.S. Rule of Interpretation 1(a). In HQ 961036, Customs explained in detail the court guidance that we follow in distinguishing between nightwear and loungewear for tariff purposes. In particular, the court in International Home Textile, Inc. v. United States, No. 94-06-00347, slip op. 97-31 (CIT March 18, 1997), aff’d, 153 F.3d 1378 (CAFC 1998), found that the goods of heading 6107 are characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing). Overall, Customs believes that the classification of any loungewear is determined by the principal use of the class or kind of merchandise to which the goods belong, the specific features of the garment at issue and whether, when taken as a whole, the garment imparts a sense of private activity to the wearer. Counsel submits a letter from a sleepwear buyer at a retail store that indicates the store will be buying a group of knit bottoms and nightshirts that will be sold as sleepwear in the sleepwear department. The statement, however, does not identify the garments by style number or other means, such as purchase orders, detail sheets, specifications, sketches, or other documentation. Counsel argues that HQ 958840, dated July 15, 1996, is supportive of the instant garments as sleepwear. In that ruling sufficient documentation as to how the garments were marketed that classification within heading 6107 was appropriate. Here, there is no way to verify that this letter corresponds to the garments at issue. Counsel submits no advertising for the instant garments. Our sources indicate that similar garments are advertised in newspapers, circulars and catalogs as loungewear, indicating a dual purpose as informal outerwear and sleepwear. The shorts at issue are similar to those ruled on for Hampton Industries in HQ 961036 dated April 27, 1998, in that they have a tunnel elastic waistband, side seam pockets and hemmed leg openings. They differ in two respects, the type of knit material in the body of the garment, and the fact that the instant garment has a one-button fly rather than no fly. The jersey knit fabric is light weight but not sheer and is substantial enough to provide sufficient modesty for the garment to be worn at informal social occasions in and around the home. We have ruled that a one-button fly feature can contribute to classification as outerwear or sleepwear. See, e.g., HQ 957005, dated January 13, 1995 and HQ 960432, dated August 22, 1997. In this case, taken in the context of the other features of the garment, the one-button fly feature provides the type of coverage that would enable the shorts to be worn as outerwear. The placket has been sewn down an additional inch (approximately) at the bottom of the placket to reduce the size of the opening. We find that the shorts are not characterized by a sense of privateness or private activity. Counsel cites HQ 959084, dated July 18, 1997, as supportive of classification of the instant garments as sleepwear. One of the dominant features of the garments in that ruling was their exposed elastic waistband, denoting a strong connection to underpants. No such feature exists in the instant garments. The pants at issue are identical to those ruled on for Hampton Industries in HQ 961036 except for the presence of a one-button fly rather than no fly. As noted above on shorts of considerably less substantial fabric, a one-button fly with the same placket opening provides sufficient coverage for the pants to be worn as outerwear. We find that the pants are not characterized by a sense of privateness or private activity. The shirt at issue is also similar to those ruled on in HQ 961036 in that they have a similar neckline, a partial front opening with four, rather than three button closure and a hemmed bottom with side slits. The shirt differs in three respects, the type of knit material in the body of the garment, the length of sleeve and the type of bottom hem. As noted above, the knit material here is finer, but is not sheer and is typical of outerwear t-shirts. The short sleeves and straight bottom hem with side slits are consistent with outerwear shirts, as is the substantial finishing detail around the neckline. We find that the shirt is not characterized by a sense of privateness or private activity. HOLDING: The shirt is classified in subheading 6105.10.0010, which provides for men’s cotton knit shirts, dutiable at 20.5 percent ad valorem and carrying textile category 338. The pants are classified in subheading 6103.42.1020, which provides for men’s cotton knit trousers, dutiable at 16.7 percent ad valorem and carrying textile category 347. The shorts are classified in subheading 6103.42.1050, which provides for men’s cotton knit shorts, dutiable at 16.7 percent ad valorem and carrying textile category 347. The designated textile and apparel category may be subdivided into parts. If so, 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 negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division