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HQ 957809




June 21, 1995

CLA-2 R:C:T 957809 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010

Mr. Miguel Ruiz
Miami International Forwarders
P.O. Box 523730
Miami, Florida 33152-3730

RE: Classification of men's woven flannel sleep shorts and sleep pants

Dear Mr. Ruiz:

This is in response to your letters of March 1, 1995, requesting classification rulings on men's sleep shorts and sleep pants. As both requests are on behalf of the same importer, Cypress Apparel Group, we are consolidating the requests and response in this ruling. Samples were received with this request.

FACTS:

A sample men's pair of shorts was submitted for classification. You indicate the shorts are identified by style numbers 92009, 92019 and 92029. The garment is made of 100 percent cotton woven flannel fabric. It features a completely exposed (interior and exterior) 1-« inch elastic waistband, side seam pockets, 2-inch side vents on outer leg openings, and a fly front with a one button closure. The exposed elastic waistband has the words "Tommy Hilfiger" embroidered on it with contrasting color yarn and a label with the name "Tommy Hilfiger" sewn on it at the front center. This garment will be made in Peru.

A sample men's pair of pants was submitted and you indicate the pants are identified by style numbers 82009T, 82019T and 82029T. The garment, which extends from the waist to the ankles, is made of 100 percent cotton woven flannel fabric. It features a completely exposed (interior and exterior) 1-« inch elastic waistband and a fly front with a one button closure. The exposed elastic waistband has the words "Tommy Hilfiger" embroidered on it with contrasting color yarn and a label with the name "Tommy Hilfiger" sewn on it at the front center. The submitted sample -2-
does not have pockets, however you indicate that the garment will have side seam pockets when imported. This garment will be made in Turkey.

You submit that the importer claims that the shorts and pants will be sold exclusively in sleepwear departments and on rack type fixtures specially designed for "TOMMY HILFIGER" products. The importer contends these garments are worn only to bed.

You submitted copies of specification sheets for the garments and examples of the hang tags that will be attached to the garments when sold. The hangtags indicate the garments are "sleepwear". No advertising material is available at this time on these garments.

ISSUE:

Are the submitted garments classifiable as men's sleepwear garments similar to pajamas and nightshirts in heading 6207, Harmonized Tariff Schedule of the United States Annotated?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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 and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Heading 6207 provides for, among other things, men's nightshirts, pajamas and similar articles. The Explanatory Notes (EN) for the Harmonized Commodity Description and Coding System, the official interpretation of the Harmonized System at the international level, do not provide much additional information than that provided by the language of the heading. The EN for heading 6207 provides, in part, the following:

The heading also includes nightshirts, pyjamas, bathrobes (including beachrobes), dressing gowns and similar articles for men or boys (garments usually worn indoors).

It is often stated that "the merchandise itself may be strong evidence of use." Mast Industries, Inc. V. United States, 9 CIT 549, at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The garments at issue are manufactured with a fabric, flannel, generally associated with sleepwear garments. But, Customs notes that flannel is not exclusively used for sleepwear and its popularity for use in other garments appears to be increasing. These garments are -3-
styled similarly to men's pajama bottoms, though these cannot be pajama bottoms as there are no matching pajama tops. See, 088489 of April 18, 1991. Certain features of the subject garments, such as the side pockets and button fly, are features generally associated with garments intended to be worn in public as opposed to sleep garments.

Although the garments possess features not generally associated with men's sleepwear bottoms, the styling and type of fabric used in their manufacture is of the type associated with sleepwear. In addition, you indicate the garments will be marketed exclusively in sleepwear departments as part of a sleepwear line.

As stated in Mast, at 551, "most consumers tend to purchase and use a garment in the manner in which it is marketed." Based upon the physical attributes of the garments and the manner in which they will be marketed, Customs agrees that these garments will be principally used as sleepwear and thus should be classified as such.

HOLDING:

The men's woven cotton flannel shorts and pants at issue here are classifiable as men's sleepwear garments similar to pajamas and nightshirts in subheading 6207.91.3010, HTSUSA, textile category 351, dutiable at 6.5 percent ad valorem.

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.

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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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