HQ 959134: Classification of men's woven cotton flannel trousers;heading 6207, HTSUSA; sleepwear.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ  959134
                           July 3, 1996
CLA-2 RR:TC:TE 959134 SK

CATEGORY:  Classification

TARIFF NO.'s: 6207.91.3010

Ryden Richardson, Jr.
Carmichael International Service
533 Glendale Boulevard
Los Angeles, CA 90026-0057

RE: Classification of men's woven cotton flannel trousers;
heading 6207, HTSUSA;            sleepwear.

 Dear Mr. Richardson:

     This is in response to your inquiry of March 1, 1996, on
behalf of your client, Venture Stores, in which you request a
binding classification ruling for a pair of men's woven cotton
flannel trousers.   You have submitted a sample for Customs'
examination, referenced style number 9601LP.

FACTS:

     Style 9601LP is a pair of men's woven cotton flannel
trousers.  The garment features an exposed elasticized waistband,
a rear patch pocket, a fly front with one button closure (which
does not break the waistband) and rib knit cuffs at the leg
bottoms. 

ISSUE:

     Whether the subject merchandise is classifiable as a men's 
cotton sleepwear garment similar to pajamas under subheading
6207.91.3010, HTSUSA, or as men's cotton outerwear trousers of
subheading 6203.42.4015, HTSUSA?

                              - 2 -

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, men's
outerwear trousers.  

     The determinative issue is whether Style 9601LP is
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 garment, 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.

     No marketing evidence was submitted to this office.  Customs
will therefore base its classification decision on Style 9601LP's
physical characteristics.  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).  Style 9601LP is 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.  


                              - 3 -

     In the instant case, Style 9601LP does not possess a covered
waistband or side seam pockets.  Although the garment does have a
rear patch pocket, this feature will not preclude a garment from
being classified as sleepwear inasmuch as it does not interfere
with the garment's practical use for sleeping.  The garment
possesses a fly opening which is secured by a one button closure. 
As most men's sleepwear bottoms will possess a fly front opening,
we find the presence of this feature, combined with Style
9601LP's exposed elasticized waistband and overall styling to be
persuasive evidence of the garment's status as sleepwear.

HOLDING:

     Style 9601LP is classifiable under subheading 6207.91.3010,
HTSUSA, which provides for men's sleepwear garments similar to
pajamas and nightshirts.  The applicable rate of duty is 6.4
percent ad valorem and the textile quota category is 351.

     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 your client 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 the 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, your client  should contact
the 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
Division