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HQ 954486




October 22, 1993

CLA-2 CO:R:C:T 954486 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6108.31.0020

Mr. John E. Brady
Western Overseas Corporation
1855 Coronado Avenue
Long Beach, California 90804

RE: Reconsideration of HRL 089959 of November 18, 1991; Classification of certain children's garments as sleepwear

Dear Mr. Brady:

This ruling is in response to your request of June 23, 1993, regarding reconsideration of HRL 089959 of November 18, 1991. Your request for reconsideration is based upon action taken by the Consumer Products Safety Commission in the form of a Stay of Enforcement of sleepwear requirements for certain garments.

FACTS:

On January 13, 1993, the Consumer Products Safety Commission (CPSC) published in the Federal Register (58 FR 4111) an Advance Notice of Proposed Rulemaking for 16 CFR 1615 and 1616, Standards for the Flammability of Children's Sleepwear: Sizes 0 Through 6X and 7 Through 14. The notice sought comments regarding a possible change to sleepwear flammability standards to exempt close-fitting garments and garments for children under one from the existing sleepwear standards. In the same issue of the Federal Register (58 FR 4078), the CPSC published notice of a stay of enforcement of the sleepwear requirements against skin-tight or nearly skin-tight garments currently being used as sleepwear that are labeled and marketed as underwear.

These actions on the part of the CPSC is your basis for requesting a reconsideration of HRL 089959. You submitted the manufacturer's catalog (1992 BYC Underwear Collection) and a sample garment. This office received the catalog, but no sample.

We assume the sample submitted was the same garment at issue in HRL 089959 or one virtually identical to it. The garment in HRL 089959 was described therein as follows: -2-

. . . style GBS #18, made in Korea, is a garment set, labeled size "2-3 YR.", which consists of a long sleeve pullover and long pants. Both are made of the same small green and pink hearts print on a soft knit cotton fabric. The pullover has a two button partial front opening which buttons left over right, sewn on rib knit cuffs, a hemmed bottom, and capping around the neck opening. The pants portion have an elasticized waist, sewn on rib knit cuffs, and a triangular inserted piece in the crotch area, the pointed end of which extends up to the rear almost to the waistband.

. . ., our examination of the merchandise indicates that the garments would be somewhat loose fitting--the pullover is not tapered and measures approximately 11 inches across the bottom (seam to seam) and 10-1/2 inches across the chest (seam to seam) while the hip portion of the pants measures approximately 23 inches around and each thigh measures approximately 12 inches around.

In your letter you draw our attention to page 52 of the submitted catalog and style BYC 3015 which is shown there. You indicated that this style is the most nearly identical style to the sample garment you submitted.

ISSUE:

Was the garment that was the subject of HRL 089959 properly classified as sleepwear?

Does the action taken by the CPSC affect Customs classification of sleepwear garments?

LAW AND ANALYSIS:

As we do not have the sample you submitted, we are only able to review the manufacturer's catalog and review HRL 089959. As to the catalog, it does indicate that style 3015 is children's underwear, however, the catalog does not help us in determining how the garment is marketed or advertised in the United States. Therefore, it does not shed any light on how the garment will be principally used in the United States.

The decision in HRL 089959 was based upon an examination of the garment at issue therein. Since we no longer have that garment, nor a more recent sample it is difficult to reexamine the decision in HRL 089959. In the ruling, it is clearly stated that the garments had "the general look and feel of children's sleepwear" and that, in addition to the view expressed by the CPSC, was the basis for the decision to classify the garments as sleepwear. -3-

You are seeking reconsideration of HRL 089959 largely on the basis of actions taken by the CPSC. It is true that Customs conferred with the CPSC regarding the garment at issue in HRL 089959 and both agencies agreed the garment was sleepwear and not underwear. The actions taken by the CPSC regarding the Stay of Enforcement and Advance Notice of Proposed Rulemaking do not affect the decision in HRL 089959. It should be noted that the CPSC actions do not indicate a change in how the CPSC views the garments which are subject of their actions, i.e., they do not contend that the garments are no longer considered sleepwear. The CPSC actions indicate a reexamination of whether certain skin-tight or nearly skin-tight garments which are used as sleepwear should be exempted from the existing sleepwear standards regarding flammability.

HOLDING:

The garment at issue in HRL 089959 was properly classified as sleepwear in subheading 6108.31.0020, HTSUSA. The actions taken by the CPSC regarding their treatment of certain sleepwear garments does not affect the classification decision in HRL 089959.

Sincerely,

John Durant, Director

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