CLA-2 CO:R:C:T 089790 PR
TARIFF NO.:
Diane L. Weinberg, Esquire
Sandler, Travis Rosenberg
505 Park Avenue
New York, New York 10022-1106
RE: Classification of Children's Underwear Sets--Distinguished
from Sleepwear
Dear Ms. Weinberg:
This is in reply to your submission of June 27, 1991, on
behalf of Impact Imports International, Inc., concerning the
classification of certain children's apparel sets. You indicate
that one small sample shipment of the merchandise in question has
been detained by our Area Director, John F. Kennedy International
Airport, because the garments failed to comply with the Consumer
Product Safety Commission's (CPSC) flammability standard for
children's sleepwear (16 CFR 1615.3 and 1616.3), but that this
request concerns a series of future transactions. Our ruling on
the matter follows.
FACTS:
A sample set of apparel was submitted. It consists of two
fine rib-knit cotton garments--upper and lower body coverings.
The upper portion is a long sleeve pullover. It has cuffs, a
neckband, and a straight hemmed bottom. The lower portion of the
set is a pants-like garment with an elasticized waist and cuffs
at the leg ends. Both garments appear to be close fitting. The
set is stated on the label to be a size 10 and to be a product of
Turkey. There is no indication on the garment or the
accompanying labeling that these garments are intended to be worn
exclusively or mainly by boys or by girls. The label, hang tag,
and clear plastic packaging all contain the statement that the
set is underwear and should not be used as sleepwear.
ISSUE:
The issue presented is whether the sample garments are
classifiable under headings which include underwear, or whether
they are classifiable as pajamas (sleepwear).
LAW AND ANALYSIS:
The underwear and sleepwear provisions of the tariff
schedule are eo nomine by use provisions. That is, merchandise
is classifiable under the appropriate provision if merchandise is
used as sleepwear or as underwear. In this regard, additional
U.S. Rule of Interpretation 1(a) provides that in the absence of
context to the contrary, a tariff classification controlled by
use, other than actual use, is to be determined by the principal
use in the United States at, or immediately prior to the date of
importation of goods of the same class or kind of merchandise.
Principal use is that use which exceeds each other single use.
In order to determine the principal use of merchandise,
Customs will usually look to how that merchandise is viewed in
the commercial arena. HRL 088192, February 20,1991. In this
connection, the inquirer has furnished evidence to this office
that it only sells underwear, that all its customers only sell
underwear (or that the departments of the large stores it sells
to are not the departments within those stores which merchandise
sleepwear), and that the subject garments are ordered, invoiced,
and purchased as underwear.
In view of the interest shared by the U.S. Customs Service
and CPSC concerning the identification of children's sleepwear,
we have consulted with representatives of CPSC on this matter and
on the distinction between underwear and sleepwear in general.
They stated that CPSC's present position is that tight fitting
garments of the type here involved are not considered to be
sleepwear and, therefore, not subject to the requirements of the
Flammable Fabrics Act (15 U.S.C. 1191-1204).
The CPSC has issued a publication called Supplemental CPSC
Staff Guide To The Enforcement Policy Statements of the
Flammability Standard For Children's Sleepwear. In that
publication, CPSC has set out the criteria it developed to be
used in determining whether certain types of garments are
considered to be children's sleepwear for purposes of the
Flammable Fabrics Act. The information and criteria contained in
the CPSC publication is the result of that agency's extensive
research in the sleepwear area.
Customs is not bound for tariff classification purposes by
the determinations of the CPSC. However, we recognize that,
where possible, garments should be treated uniformly by the
various governmental agencies. Accordingly, we have reviewed the
CPSC publication and found that, in regard to sleepwear and not
garments that are merely related to sleepwear, the criteria
presently utilized by CPSC is in accord with Customs views
concerning the types of garments which are principally used as
children's sleepwear. Accordingly, absent circumstances that
would warrant a contrary result, Customs will follow the criteria
established by CPSC in determining whether certain types of
children's garments are classifiable in the HTSUSA as sleepwear.
In Customs Headquarters Ruling Letter (HQRL) 088564, dated
February 28, 1991, a two-piece garment set, somewhat similar to
the subject garments, was held to fall within the class of
garments primarily used as sleepwear. This ruling has been cited
as requiring a sleepwear classification for the instant garments.
In HQRL 088564, Customs relied on trade magazine articles,
catalogues, our own personal experiences with similar types of
merchandise, and the appearance of the samples. The garments
which were the subject of HQRL 088564 were made from a heavier
weight fabric and were significantly looser fitting than the ones
presented for this ruling. As a matter of interest, during our
recent conference with CPSC concerning children's sleepwear
garments, it was determined that CPSC would also consider the
garments which were the subject of HQRL 088564 to be sleepwear
and subject to the requirements of the Flammable Fabrics Act.
Note 13, Section XI, HTSUSA, provides that unless "the
context otherwise requires, textile garments of different
headings are to be classified in their own headings even if put
up in sets for retail sale." Accordingly, the garments
comprising the sample set are classifiable separately.
Chapter 61, Note 8, HTSUSA, provides that articles "which
cannot be identified as either men's or boys' garments or as
women's or girls' garments are to be classified under the
headings covering women's or girls' garments."
HOLDING:
The sample garments are classifiable as follows: (1) the
bottom portion under the provision for other girls' cotton
underwear, in subheading 6108.91.0025, HTSUSA, with duty at the
rate of 9 percent ad valorem (textile and apparel category 352);
(2) the upper portion under the provision for girls' cotton knit
underwear, in subheading 6109.10.0037, HTSUSA, with duty at the
rate of 21 percent ad valorem (textile and apparel category 352).
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.
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 renegotiations 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 internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division