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HQ 957647




April 6, 1995

CLA-2 CO:R:C:T 957647 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6205.20.2050, 6203.42.4015, 6203.42.4050

Robert T. Stack, Esq.
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, New York 10036-8901

RE: Classification of certain men's woven cotton garments; claimed sleepwear; classification not sleepwear; not 6207, HTSUSA

Dear Mr. Stack:

This ruling is in response to your request of January 13, 1995, on behalf of Intimo, for classification of certain men's cotton woven garments as sleepwear of heading 6207, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed your submission and do not believe these garments are properly classified as sleepwear. The reason for our decision is stated below.

FACTS:

The garments at issue, styles 302331 (pullover shirt), 521331 (long pants) and 172331 (shorts), are constructed of the same 100 percent cotton woven fabric. The fabric appears to be a dobby weave with various geometric designs created in alternating colored stripes. The fabric is not especially soft to the touch and, in fact, is somewhat coarse.

Style 302331 is a collarless, pullover shirt with short sleeves, a partial front opening starting at the neckline and featuring a three-button placket closure, a patch chest pocket and a straight hemmed bottom with side vents.

Style 521331 is a pair of long pants with a 1-« inch elasticized waistband with a functional drawstring. The garment has side seam pockets, a rear patch pocket, a covered fly with a two button closure and straight hemmed leg bottoms.

Style 172331 is a pair of shorts with a 1-« inch elasticized waistband with a functional drawstring. The garment has side seam pockets, a rear patch pocket, a covered fly with a two button closure and straight hemmed leg bottoms with side vents.

Classification is sought not only for the submitted samples, but also for styles 302341 (pullover shirt), 512341 (long pants) and 172341 (shorts). According to your submission, styles 302341, 512341 and 172341 are identical to the submitted samples in fabric construction and the appearance of the bottom garments. The shirt differs only in having a Nehru-type banded collar and long sleeves without cuffs.

You submit that these garments are men's pajama separates and seek classification as such.

ISSUE:

Are the submitted garments classifiable as men's sleepwear garments?

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 (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, HTSUSA, provides for, among other things, men's nightshirts, pajamas, bathrobes, dressing gowns and similar articles. The Explanatory Notes for the Harmonized Commodity Description and Coding System, the official interpretation of the tariff at the international level, state in regard to heading 6207, in part:

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

The court in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), noted the definition of "nightwear" as "garments to be worn to bed." The court also pointed out that "the merchandise itself may be strong evidence of use." Mast, supra, at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963).

Customs believes in this instance the most persuasive evidence is the garments themselves. These garments are made of a somewhat coarse fabric which we believe is atypical for sleepwear garments. The hand of the fabric, its construction and design are features more typical of fabric found in sportswear garments. In addition, the garments have the appearance of casual sportswear or outerwear garments. The concealed fly with closure and numerous pockets make the pants and shorts more than suitable for wear in public.

Nothing has been submitted to substantiate the claim that these garments are sleepwear other than the claim that the garments are being specially ordered by the sleepwear/underwear buyer of Sak's Fifth Avenue. This claim, by itself, is insufficient to overcome our conclusion based upon an examination of the garments themselves.

HOLDING:

The garments at issue, styles 302331, 521331 and 172331 are not classifiable as men's sleepwear. Style 302331 is classified as a men's cotton woven shirt with two or more colors in the warp and/or filling in subheading 6205.20.2050, HTSUSA, textile category 340, dutiable at 20.9 percent ad valorem.

Style 521331 is classified as men's cotton woven pants in subheading 6203.42.4015, HTSUSA, textile category 347, dutiable at 17.6 percent ad valorem.

Style 172331 is classified as men's cotton woven shorts in subheading 6203.42.4050, HTSUSA, textile category 347, dutiable at 17.6 percent ad valorem.

Provided styles 302341 (pullover shirt), 512341 (long pants) and 172341 (shorts), which were not submitted, are virtually identical to the garments which were submitted, they would be similarly classified.

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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