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HQ 956537




June 22, 1994

CLA-2 CO:R:C:T 956537 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4015

Alexandra M. Stoianovici
Associated Merchandising Corporation
1440 Broadway
New York, New York 10018

RE: Tariff classification for men's woven cotton flannel trousers from Korea; sleepwear; loungewear.

Dear Ms. Stoianovici:

This is in response to your letter of April 25, 1994, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of men's cotton flannel trousers. A sample was provided to this office for examination and will be returned to you under separate cover.

FACTS:

The submitted sample, style F9444501, is a pair of men's woven cotton flannel trousers with a turned over elasticized waistband, elasticized leg bottoms and diagonal front pockets. The garment does not possess a fly. A "Daewoo" label has been sewn inside the waist.

You have proffered a catalog advertisement to support your contention that style F9444501 is marketed as sleepwear. The advertisement contains a picture of three models wearing pajamas or shorts. It includes descriptive printed matter which states in pertinent part:

Stay warm and comfortable on those cool winter nights with stylish sleepwear and jams from Charles Goodnight.

Coordinating flannel sleep pant with black cuffs and logo waistband.

Flannel sleep pant in black watch plaid with black cuffs and logo waist band.

ISSUE:

Whether the garment is classified in subheading 6207.91.3010, HTSUSA, which provides for pajamas and similar articles including sleepwear; or subheading 6203.42.4015, HTSUSA, which provides for men's cotton trousers?

LAW AND ANALYSIS:

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, state, at page 24, that:

The term "nightwear" is interpreted as meaning "sleepwear" so that certain garments worn in bed in the daytime, as by infants over 86 centimeters in height and the bed-ridden, are included. "Other nightwear" includes various articles worn for sleeping, such as nightgowns, night-shirts, "waltz gowns," etc., but does not include negligees, bed jackets, "sleep coats," or other apparel designed to be worn over sleepwear. (Emphasis added).

Similarly, in Mast Industries v. United States, 9 CIT 549, the court concluded that the definition of nightclothes was "garments worn to bed."

Style F9444501 is composed of flannel, which is a cloth suitable for pajamas and similar articles. However, this article possesses physical characteristics which suggest it will not be worn exclusively as sleepwear. For example, side pockets are not normally associated with sleepwear. Under normal circumstances there is no need for pockets in a pair of trousers principally worn in bed or for sleeping. Moreover, the absence of a fly and the presence of elasticized leg bottoms suggests that this item may be worn in a manner consistent with sweat pants. Conversely, sleep pants usually feature a fly. Based on the foregoing, we conclude that style F9444501 is a multiple use garment.

Although you state that the advertising material pertains to style F9444501, we find no evidence to substantiate this claim. The descriptive literature makes no mention of sleep pants possessing side pockets or elasticized leg openings, which are significant design characteristics. On the other hand, the trousers which are described possess a "logo waistband" not incorporated as part of the instant garment. In addition, style F9444501 is not displayed in the advertisement. Finally, the promotional material relates to sleepwear from Charles Goodnight, whereas style F9444501 is sold by Daewoo. Consequently, the advertisement does not support your claim that this article is marketed as sleepwear.

In HRL 951032, dated May 7, 1992, we classified several garments, including a pair of men's pants with rib knit cuffs, as well as side seam and rear pockets. In that decision, we stated:

After examining the garments in question, we find that there is nothing about the styling, fabric, cut, or construction of these garments which indicate that they were designed primarily for wear to bed. Rather, the garments are designed and constructed in the manner and style of knit sportswear. We believe that these garments are part of the relatively new men's loungewear trade where the garments are designed for comfortable wear in and around the home. Garments of this type are multi-purpose garments rather than garments designed primarily to be worn to bed for sleeping.

Thus, we found that the garments were classifiable as loungewear for the reason that they were not primarily designed for use in bed. Similarly, style F9444501 is a multi-purpose garment which may be worn in and around the home or even out of doors. Consequently, it shall be regarded as loungewear and is classifiable as a pair of men's trousers.

HOLDING:

The subject merchandise is classifiable under subheading 6203.42.4015, HTSUSA, which provides for trousers, bib and brace overalls, breeches and shorts: of cotton: other: other, trousers and breeches: men's: other. The applicable rate of duty is 17.7 percent ad valorem. The textile quota category is 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 the subject of frequent negotiations and changes, to obtain the most current information available, we suggest that you 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, you 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

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