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HQ 958840




July 15, 1996

CLA-2 RR:TC:TE 958840 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6107.91.0030

Steven P. Kersner, Esq.
Arlene Arszulowicz
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219

RE: Revocation of NY 817100; classification of men's cotton knit garments; cut and styling of multipurpose garments; documentation and advertising supportive of classification as sleepwear; heading 6107, HTSUSA

Dear Mr. Kersner and Ms. Arszulowicz:

This is in reference to New York Ruling Letter (NY) 817100 issued to your client ISACO International, on December 29, 1995. Customs has reexamined the decision and determined that the decision was in error. NY 817100 classified the merchandise in subheading 6103.42.1010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as men's trousers, and subheading 6103.41.1050, HTSUSA, as men's shorts. Customs believes NY 817100 should be revoked to reflect the correct tariff classification in subheading 6107.91.0030, HTSUSA, as men's sleepwear. Samples were submitted to this office for examination.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization), of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY 817100 was published on June 12, 1996, in the CUSTOMS BULLETIN, Volume 30, Number 24.

FACTS:

The merchandise at issue consists of two styles of 100 percent cotton finely knit men's garments to be imported from Thailand. You state that both garments are made of soft lightweight 100 percent cotton, 40/1 jersey, 100 grams/meterý. The garments are either in a solid color or an all over print. The prospective imports will additionally feature a jacquard waistband with the words "Natural Issue".

The first style (no style number indicated), referred to as a "sleep/lounge pant", is a loose-fitting pant with elasticized leg openings and an exposed elasticized waist.

The second style (no style number indicated), referred to as a "sleep/lounge short", is a loose fitting-short with an exposed elasticized waist and a one button fly front opening which does not break the waistband, and hemmed leg openings.

In NY 817100 the subject merchandise was classified respectively in subheading 6103.42.1010, HTSUSA, as men's trousers, and subheading 6103.41.1050, HTSUSA, as men's shorts. You believe this classification is in error and that the merchandise is properly classified as men's sleepwear in subheading 6107.91.0030, HTSUSA.

It should be noted that two sets of samples were submitted. One set of samples featured side seam pockets on both the shorts and the pants. As the merchandise with the pockets did not correspond to the actual description of the merchandise detailed in your submission or with the merchandise described in NY 817100, that set of samples will be disregarded.

ISSUE:

Whether the subject garments are classifiable as men's knit sleepwear of heading 6107, HTSUSA or as men's multipurpose garments in heading 6103, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). 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 GRI will be applied, in the order of appearance.

Heading 6107, HTSUSA, provides for, among other things, men's knitted or crocheted nightshirts, pajamas and similar articles. In determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), the Court of International Trade dealt with the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster's Third New International Dictionary which defined "nightclothes" as "garments to be worn to bed". In Mast, 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, 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.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), (hereinafter Guidelines), state that the term nightwear is interpreted as meaning "sleepwear" so that certain garments worn in bed in the daytime are included. The Guidelines further indicate that besides pajamas, other nightwear includes various articles worn for sleeping. Classification of garments as sleepwear is based upon use. In this regard, Additional U.S. Rule of Interpretation 1(a) provides that in the absence of context to the contrary, 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.

In classification, the most persuasive evidence is the garment itself. The court in Mast citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D 817 (1963), pointed out that "the merchandise itself may be strong evidence of use." In regard to the specific merchandise submitted, it is the opinion of this office that the pants and the shorts are "borderline" garments, that is, they have features which could be attributed both to outerwear or sleepwear. For example, while the garments at issue are constructed from lightweight jersey knit fabric, the fabric is not so sheer that the contours of the body would be immodestly revealed should these garments be worn around the home. Additionally physical characteristics such as the absence of a fly and the presence of tunnel elastic leg bottoms on the pants, and the secure one button closure and hemmed leg openings on the shorts, suggest that the garments might be used as multipurpose garments.

In St. Eve International, Inc. v. United States, the court considered testimony that the garments were "designed, manufactured and advertised" by plaintiff as sleepwear. You state that the subject garments will be marketed as men's sleepwear and sold in the men's sleepwear department of stores. As such, you believe that the garments at issue are designed, ordered and will be promoted as nightwear, thereby meeting the parameters noted by the court. Despite ambiguities in the styling features of the garments, the documentation submitted by you with respect to these garments clearly substantiates your claim that these garments will be advertised and sold as sleepwear garments.

Among the documentation received by this office were purchase orders, contracts, and letters from buyers confirming that the subject pants and shorts are being purchased by their department stores as men's sleepwear for display in the sleepwear department.
The three advertising shots submitted for the pants were equally convincing. In the first ad a man is shown, from the torso down, sleeping on a bed with the caption reading, "Introducing SleepPants. Bed time will never be the same. Slip into SleepPants and slip into comfort. 100% cotton SleepPants. They can't be topped." A second ad shows three smaller but similar pictures, with the caption reading, "Sleeping beauties. Introducing SleepPants. They're perfect for the way a man likes to sleep. And they even look great when your eyes are open." In the last ad a man is shown, from the torso down, sleeping on a bed with a book and television remote control by his sides, with the caption reading, "Introducing SleepPants. The bottoms that can't be topped. Super comfortable, 100 percent cotton SleepPants. Bed time will never be the same."

As such, in the case of this specific merchandise, when considering the garments themselves and the information submitted with regard to how this merchandise will be marketed and sold, it is the belief of this office that classification as sleepwear is proper.

HOLDING:

The submitted men's cotton knit pants and shorts are properly classified in subheading 6107.91.0030, HTSUSA, which provides for men's or boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: other: of cotton; sleepwear. The applicable rate of duty is 9.2 percent ad valorem and the quota category is 351.

In accordance with section 625, this ruling will become effective 60 days from its publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

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 that your client check, close to the time of shipment, the Status 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 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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