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HQ 960422




August 4, 1997

CLA-2 RR:TC:TE 960422 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010

John B. Pelligrini, Esq.
Ross and Hardies
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219

RE: Classification of men's woven cotton pants; garment has features of multi-purpose garment; purchase orders; advertising; sleep pant, heading 6207, HTSUSA

Dear Mr. Pelligrini:

This is in reply to your letter, dated March 26, 1997, supplemented by additional documentation on May 20, 1997, and most recent fax dated August 1, 1997, on behalf of your client, Briefly Stated Inc., regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of men's woven cotton pants. A sample was provided to this office for examination.

FACTS:

The subject garment, referenced style number FM3797VH, is a pair of men's woven cotton flannel pants featuring a fully elasticized covered waistband with a functional drawstring, a fly front opening with a one button closure, and hemmed leg openings. The pants will be imported with a textile carrying bag which measures 11 inches long and 5 inches wide and features a self-fabric drawstring. The label on the carrying bag identifies the garment as a sleep pant.

In your opinion these garments should be classified as men's sleepwear garments. In support of this claim you state:

1. the subject merchandise has characteristics appropriate to sleepwear and does not have characteristics appropriate to outerwear;

2. the subject merchandise will be marketed as sleepwear and sold to the sleepwear departments of various retailers.

ISSUE:

Whether the subject merchandise is classifiable as men's sleepwear in heading 6207, HTSUSA, or as men's loungewear in heading 6203, HTSUSA?

LAW AND ANALYSIS:

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

Heading 6207, HTSUSA, provides for, among other things, men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns 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 several lexicographic sources, among them 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. 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.

Heading 6203, HTSUSA, provides for, among other things, men's or boys' trousers and shorts. 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." The subject garment may best be characterized as a hybrid garment; that is, it has features of both a sleepwear and a loungewear garment. A physical examination of style number FM3797VH reveals several features which are incongruous with classification as men's pajamas. Although you refer to the front fly opening featured on the subject garment as a "sleepwear type fly", it is the opinion of this office that the presence of the fly front with substantial one button closure provides the type of coverage that would enable the pants to be worn as outerwear. Furthermore, we note that the construction of the placket on the front fly features an additional step. That is to say, the placket has been sewn down an additional inch (approximately) at both ends of the placket to minimize the gaping of the aperture. We agree however, with your reference to the fabric composition of the subject pants as "lightweight flannel fabric" and that the loose construction and styling of the garment makes it especially suitable as sleepwear.

You state that support for classification of this garment as sleepwear is found in the presence of the elasticized waistband, as opposed to a "covered waistband", and the absence of side pockets. In support of this you make reference to HQ 959188, dated July 3, 1996 ( the second ruling to which you make reference, that is, HQ 958732, dated April 22, 1996, does not correspond to a correct Customs Headquarter Ruling number and as such we are not able to address this ruling), wherein a pair of boy's woven cotton flannel trousers were classified as outerwear. Your reference to the covered waistband found on the boy's flannel trousers of HQ 959188 seems to imply that a "covered waistband" is distinguishable from the elasticized waistband featured on the subject men's pants. This implication is incorrect. There is no substantive difference between that covered waistband and the subject waistband which although is elasticized, is nonetheless, "covered". Additionally, although side seam pockets were one of the features of the garment in HQ 959188, that determination was not premised solely on that fact. On the contrary, that garment exhibited a number of features attributable to the subject garment, specifically, flannel fabric construction and a covered waistband.

In support of your claim that these garments are to be classified as sleepwear you submitted documentation in the way of purchase orders. As we have stated in the past, when presented with a garment which is ambiguous and not clearly recognizable as sleepwear, underwear, loungewear or outerwear, Customs will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. In the case of the subject merchandise the purchase orders you have submitted from various retailers indicate that this garment is being purchased as a men's sleep pant. The pant will also be sold in a textile bag and advertised to the consumer as a "sleep pant in a bag"; we have been told by the sales staff at several department stores that this is a common sale item in many department stores. You have also submitted information substantiated by an advertisement in an apparel trade magazine that your client is in the business of selling underwear and sleepwear, principally for men and boys.

As such, it is not unreasonable to find that, based on the physical characteristics of the subject garment, particularly the loose fit, absence of pockets and the lightweight flannel fabric, combined with the documentation you have submitted, that the subject merchandise is a sleepwear garment.

On considering whether the garment and carrying bag constitute composite goods under the Harmonized Tariff Schedule, we note the following criteria set forth under paragraph (IX) of Rule 3(b) of the Explanatory Notes:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

It is our view that the men's sleep pant and carrying bag do qualify as composite goods as that term is defined and applied in the HTSUSA. GRI 3(b) provides that composite goods shall be classified as if they consisted of the component which give them their essential character. In the instant case, the men's pant is classifiable in heading 6207, HTSUSA, and the carrying bag is classifiable in heading 4202, HTSUSA. With respect to the subject goods, the men's pant imparts the essential character. Therefore, the men's pant and carrying bag are classifiable in heading 6207, HTSUSA. See also HQ 955787, dated April 26, 1994 and HQ 086343, dated July 13, 1990, wherein similar garments imported together with a carrying bag were classified as composite goods.

HOLDING:

Style number FM3797VH, is classified in subheading 6207.91.3010, HTSUSA, which provides for, among other things, men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: other: of cotton: other: sleepwear. The applicable general rate of duty is 6.4 percent ad valorem and the quota category is 351.

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
Tariff Classification Appeals

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