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HQ 959133



July 3, 1996
CLA-2 RR:TC:TE 959133 SK

CATEGORY: CLASSIFICATION

TARIFF NO.'s: 6203.42.4045

Sherman Kobrin
Knothe Corp.
1370 Broadway, Suite 1101
New York, N.Y. 10018

RE: Classification of boys' woven cotton flannel trousers; heading 6203, HTSUSA; loungewear.

Dear Mr. Kobrin:

This is in response to your inquiry of January 31, 1996, in which you request a binding classification ruling for five styles of boys' woven cotton flannel trousers. This office is in receipt of one representative sample, referenced style number M-9651LP.

FACTS:

Five styles of boys' woven cotton flannel trousers are at issue, identified as style numbers M-9651LP, M-9659LP, M-9660LP, M-9661LP and M-9662LP. The samples will be imported in sizes S, M, L and XL, sized for boys ages 8-20. No information was submitted as to whether the subject garments are flame retardant. We note that boys' sleepwear up to size 14 must meet the requirements of the Flammable Fabrics Act administered by the Consumer Protection Safety Commission (CPSC). Untreated cotton flannel will not pass CPSC requirements. All five samples have a tag on the inner waistband with the inscription: "Not Intended For Sleepwear."

Style M-9651LP features a covered waistband, side seam pockets, hemmed leg bottoms and a functional drawstring.

Style M-9659LP features a covered waistband and hemmed leg bottoms.

Style M-9660LP features a covered waistband, hemmed leg bottoms and functional drawstring.

Style M-9661LP features a tape waistband and hemmed leg bottoms.

Style M-9662LP features a covered waistband, side seam pockets and hemmed leg bottoms.

None of the five styles at issue possesses a fly opening.

ISSUE:

Whether the subject merchandise is classifiable as boys' cotton sleepwear garments similar to pajamas under subheading 6207.91.3010, HTSUSA, or as boys' cotton outerwear trousers of subheading 6203.42.4045, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (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. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, applied in sequential order.

Heading 6207, HTSUSA, provides for, inter alia, men's nightshirts, pajamas and similar articles. Customs has consistently ruled that pajamas are generally two-piece garments worn for sleeping. One-piece garments used for sleeping are not classifiable as pajamas; instead they fall into a residual provision within heading 6207, HTSUSA, for similar articles. Garments classifiable in this residual provision include sleep shorts and sleep pants.

Heading 6203, HTSUSA, provides for, inter alia, boys' outerwear trousers.

The determinative issue is whether the subject garments are classifiable as sleepwear or as outerwear. It is both practicable and commercially acceptable for woven cotton flannel trousers, designed in a manner similar to the instant garments, to be marketed, sold and used by consumers as either sleepwear or outerwear. The issue of whether a particular woven flannel trouser is sleepwear or outerwear depends, in large part, on whether the article's design renders it exclusively suitable for use as one or the other and the manner in which the garment is marketed.

In situations such as these, Customs will first examine the physical characteristics of the subject article. As this office has noted in prior rulings, "the merchandise itself may be strong evidence of use." See Headquarters Ruling Letter (HRL) 957809, dated June 21, 1995, citing Mast Industries, Inc. v. United States, 9 CIT 549, at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The garments at issue are manufactured from woven flannel, a fabric commonly, but certainly not exclusively, associated with sleepwear apparel. As Customs stated in HRL 957810, dated June 21, 1995, "[F]lannel is not exclusively used for sleepwear and its popularity for use in other garments appears to be increasing." In that ruling, this office also noted that certain features, such as covered waistbands and side seam pockets are features generally associated with garments intended to be worn in public as opposed to sleep garments. Additionally, the absence of a fly is generally indicative of a garment's status as outerwear. In the instant case, none of the five styles at issue possess fly openings. As most sleepwear trousers will possess this feature, we find the absence of fly openings on all of the subject garments, combined with the presence of pockets and/or covered waistbands, as indicative of these garments' status as outerwear trousers.

With regard to the issue of how this merchandise is marketed, no explicit marketing evidence was presented to this office. Your company's letterhead describes Knothe Corp. as a company making "finely tailored nitewear since 1886." Yet, in each of the five styles at issue, a label is sewn to the inside of the waistband which reads, "Not Intended for Sleepwear." Neither of these facts is determinative and, in fact, they are seemingly contradictory. Therefore, in this instance, Customs will base its classification decision on the subject garments' physical characteristics. As stated supra, we find the overall styling of the subject garments, particularly the omission of a fly opening on all five garments, to be persuasive evidence of these garments' status as outerwear trousers.

HOLDING:

Style numbers M-9651LP, M-9659LP, M-9660LP, M-9661LP and M-9662LP are classifiable under subheading 6203.42.4045, HTSUSA, which provides for, in pertinent part, boys' woven cotton trousers. The applicable rate of duty is 17.5 percent ad valorem and 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 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 issuance of the U.S. Customs Service, which is updated weekly and is available 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 importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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