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HQ 958234




November 28, 1995

CLA-2 RR:TC:TE 958234 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4045

James J. Kelly, Esq.
Barthco International, Inc.
75475 Holstein Avenue
Philadelphia, PA 19153

RE: Reconsideration of New York Ruling Letter (NYRL) 805607 of January 25, 1995; Classification of boys' woven cotton flannel pants

Dear Mr. Kelly:

This is in response to your request of July 24, 1995, on behalf of Salant Corporation, that Customs reconsider our classification decision in NYRL 805607 regarding certain boys' woven cotton flannel pants. In NYRL 805607, Customs classified the pants, style 484007 (by error, ruling identified as style 48407), as boys cotton woven pants of heading 6203, Harmonized Tariff Schedule of the United States (HTSUS). You have requested Customs reconsider this classification stating the garments are boys' woven cotton flannel sleep pants and seek classification in heading 6207, HTSUS, textile category 351. At our request, you submitted a sample garment with cover letter dated November 3, 1995.

FACTS:

The garment at issue, style 484007, is described in NYRL 805607 as:

. . . a pair of boys' woven cotton flannel pants. It has a fully elasticized waistband. The waistband has the words "Joe Boxer" printed on it. The elastic of the waistband is exposed. The garment has side seam pockets and rib knit cuffs. You refer to the garments as Toboggan Pants.

The sample garment submitted for our review is style 484061. The garment is identical in all material respects to style 484007. It differs in the plaid pattern of its fabric. Both style 484007 and 484061 are imported from Egypt. Of note, the submitted garment lacks a fly. -2-

ISSUE:

Are the Toboggan Pants at issue, style 484007, classifiable as boys' sleep pants or boys' underwear of heading 6207, HTSUS, or, as boys' woven pants of heading 6203, HTSUS, as ruled in NYRL 805607?

LAW AND ANALYSIS:

Classification of goods under the 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, HTSUS, provides for, among other things, men's or boys' woven underpants, briefs, nightshirts, pajamas, and similar articles. Subheading 6207.11.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), provides for men's or boys' woven cotton underpants and briefs. Subheading 6207.91.3010, provides for men's or boys' woven cotton other sleepwear (including sleep pants). Heading 6203, HTSUS, provides for, among other things, men's or boys' woven cotton pants.

The Explanatory Notes to the Harmonized Commodity Description and Coding System, the official interpretation of the tariff at the international level, offer no meaningful assistance in this case. The classification decision is based upon an examination of the submitted garment and consideration of the information received in this case.

In the initial request for a classification ruling on this garment, dated November 2, 1994, Salant Children's Apparel Group claimed the garment to be underwear. By letter dated November 9, 1994, you requested a ruling on behalf of Salant on a "toboggan pant" of 100 percent cotton flannel manufactured in Egypt. In that request, the garment was claimed to be underwear, not sleepwear. In your request that Customs reconsider our decision in NYRL 805607, you claim the garment, toboggan pants, to be boys' flannel sleep pants.

The submitted garment has a sewn in label which states in bolded, capitalized letters "NOT INTENDED FOR SLEEPWEAR". The garment also features a hang tag which, in addition to stating the brand name, i.e., Joe Boxer, also states--"'Toboggan Pant - not intended for sleep'". However, the reverse side of the hang tag states:

WARNING: Do not operate heavy machinery while wearing this garment. May cause drowsiness. -3-

It would appear the hang tag for the garment is sending mixed messages. However, Customs will accept the hang tag and sewn-in label claims that the garment is not sleepwear. This means we must reject your claim that the garment is sleepwear.

In addition, the lack of a fly and the silhouette of the garment, which we feel is not close-fitting, cause us to reject consideration of classification as underwear. As a result, the only plausible classification left is as boy's pants of heading 6203, HTSUS.

In your request for reconsideration you have cited Inner Secrets/Secretly Yours, Slip Op. 95-60, which dealt with the classification of certain women's cotton flannel boxer shorts. In that case, the court found that the garment before it had a fly. The garment at issue here is not similar to the garment at issue in Inner Secrets/Secretly Yours. In fact, the garment at issue here does not possess a fly of any kind.

HOLDING:

NYRL 805607 of January 25, 1995, correctly classified style 484007 as boys' woven cotton pants in subheading 6203.42.4045, HTSUSA, textile category 347, dutiable at 17.6 percent ad valorem.

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 Division

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