HQ 954486: Reconsideration of HRL 089959 of November 18, 1991; Classification of certain children's garments as 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 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