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HQ 959208



November 25, 1996

CLA-2 RR:TC:TE 959208 DHS

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.42.4015

Raymond Tsui
Great World Customs Service
1305 Grandview Drive
South San Francisco, CA 94080

RE: Classification of men's woven cotton flannel pants; loungewear v. pajamas; garment has features of multi-purpose garment; heading 6203, HTSUSA

Dear Mr. Tsui:

This is in reply to your letter dated March 15, 1996, submitted on behalf of your client Brigata International Inc., in which you request a classification determination for a pair of men's flannel pants from China, Style No. 105. A sample was submitted for examination.

FACTS:

The submitted sample, referenced style number 105, is a pair of men's woven cotton flannel pants. They have an elasticized waistband, a packeted fly opening with a three button closure (the fly front does not break the waistband), two side seam pockets and hemmed leg bottoms. The fabric comprising the garment weighs 125 grams per square meter.

ISSUE:

Is style 105 classifiable as men's pants under heading 6203, Harmonized Tariff Schedule of the United States Annotated HTSUSA), or as pajamas under heading 6207, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA 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, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

When confronted with garments which are claimed to be of a particular class, yet resemble articles of another class, Customs will first examine the article itself and its particular design features and thereafter any other extrinsic evidence pertaining to the marketing, advertising and sale of the article.

Heading 6207, HTSUSA, provides for, among other things, men's 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, (hereinafter Mast), 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 Webster's Third New International dictionary which defined "nightclothes' as "garments 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), (herein 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 indicate that besides pajamas, other nightwear includes various articles worn for sleeping.

The use of the garment itself is a determining factor in the classification of the garment as either sleepwear or loungewear. 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.

Heading 6203, HTSUSA, provides for, among other things, men's or boy's trousers and shorts. In classification, the most persuasive evidence is the garment itself. The court in 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 the instant case, several features of style No. 105 are incongruous with the classification of the garment as men's pajamas. For instance, side-seam pockets are normally not sleepwear features; they are however, features associated with pants worn while lounging at home or wearing as a casual mode of outerwear dress. Decorative pockets (such as breast pockets on sleepwear tops or rear pockets without a closure) are more commonly associated with pajamas. Additionally, style No. 105 has a substantial three button fly which provides sufficient closure to enable the garment to be worn as outerwear. Even the flannel fabric which is so often associated with sleepwear garments has become more popular for use in other garments. While the overall design of these garments is such that they conceivably may be used as pajamas, this office is of the opinion that the presence of the pockets and closed fly indicate that they will principally be used as loungewear or outerwear. See also HQ 958594, dated January 26, 1996, HQ 958254, dated October 2, 1995, HQ 957237, dated February 6, 1995, and HQ 956507, dated October 11, 1994, wherein Customs classified similar garments which featured side seam pockets, and a fly front with button closure or no fly, in the provision for outerwear garments and not as pajamas.

According to your letter of March 15, 1996, the pants will be marketed mainly through the companies sales force. No advertising or other promotional activities have been planned. Since there is no evidence establishing the use of the garment, it is Customs opinion that the pants will not be principally used as sleepwear. They are multipurpose garments and are properly classified as men's pants in heading 6203, HTSUSA.

HOLDING:

Style No. 105 is classifiable in subheading 6203.42.4015, HTSUSA, which provides for, inter alia, other men's trousers of cotton, dutiable at a rate of 17.5 percent ad valorem. The applicable textile quota category is 347.

The designated textile and apparel categories 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 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 internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at a local Customs office.

Due to the 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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