HQ 089959
November, 18, 1991
CLA-2 CO:R:C:T 089959 PR
John E. Brady, President
Bill White, Inc.
343 South Glasgow Avenue
Inglewood, CA. 90301
RE: Classification of a Two-Piece Girls Set--Underwear vs.
Sleepwear (Pajamas); Pajama Tops Are Not Shirts For
Determination of Whether They Are For Boys or Girls
Dear Mr. Brady:
This is in reply to your letter of July 23, 1991, on behalf
of Llama Imports, Inc., concerning the tariff classification of
a two-piece girl's apparel set. Our ruling on the matter
follows.
FACTS:
The submitted sample, 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.
While it is stated that the garments are "manufactured to
fit the body snugly and to allow the garment to be worn under
outer garments", 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-« 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. -2-
ISSUE:
The issues presented are (1) whether the subject merchandise
is classifiable as underwear or as pajamas, and (2) whether the
garments are classifiable as boys' or girls' apparel.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. It appears that GRI 1
governs the classification of the subject merchandise.
The subject merchandise has been examined by the Senior
Compliance Officer in New York for the Consumer Product Safety
Commission (CPSC) and determined to be within CPSC's standards
for sleepwear. In Customs Headquarters Ruling Letter (HRL)
089790, dated July 3, 1991, this office stated:
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.
Since the samples have the general look and feel of
children's sleepwear, we concur with the CPSC's determination
regarding these garments.
-3-
The question remains whether the set is classifiable as
boys' wear because of the front opening buttoning left over
right, or as girls' apparel because of the print (small pink and
green hearts).
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."
The Harmonized Commodity Description and Coding System,
Explanatory Notes, which are the official interpretation of the
HTSUSA at the international level (for the 4 digit headings and
the 6 digit subheadings), state that shirts (classifiable under
Heading 6105, HTSUSA) with "a front opening on the neckline which
fastens or overlaps left over right are considered to be shirts
for men or boys" (at page 837). In a memorandum dated March 14,
1988, file 081679, addressed to the Area Director, New York
Seaport, we took the position that the above language was
applicable only to pullover shirts. The memorandum further
stated:
Shirts with full front openings and all nonshirt
garments will be classified according to their
individual characteristics.
This office views pajama tops to be in the category of
"nonshirt garments", and in our view, the pajamas are designed
for wear by small girls. The small pink and green hearts printed
on the garments make it unlikely that parents would dress boys in
these pajamas. However, even if they did, at most that would
make these garments unisex in nature and, therefore, classifiable
under the provisions for girls' apparel.
HOLDING:
The submitted sample set is classifiable under the provision
for girls' knit cotton pajamas, in subheading 6108.31.0020,
HTSUSA, with duty, as a product of Korea, at the rate of nine
percent ad valorem. The designated textile and apparel category
applicable to this merchandise is 351.
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.
-4-
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