CLA-2 CO:R:C:T 952285 CMR

Mr. Thomas R. Hertwig
Leisure Sports
2467 East 57th Street
Los Angeles, CA. 90058

RE: Different classifications of garments sized 24 months and garments sized 2T (2 Toddler)

Dear Mr. Hertwig:

This ruling is in response to your inquiry of July 28, 1992, regarding the different classifications of garments labeled 24 months and garments labeled 2 years or 2T.

Sizing for babies' garments is defined in the Harmonized Tariff Schedule of the United States (HTSUS) in terms of height. Chapter 61, Note 5(a), and Chapter 62, Note 4(a), each state that for the provisions within those chapters that provide for babies' garments:

The expression "babies' garments and clothing accessories" means articles for young children of a body height not exceeding 86 centimeters; it also covers babies' diapers

In Headquarters Letter of October 27, 1987, file #081165, to James A. Babb, Chairman of the Committee for the Implementation of Textile Agreements, Customs addressed the issue of how the 86 centimeter height limitation would be interpreted and applied. Customs position at that time was that the words "of a height not exceeding 86 centimeters" translated into the existing commercial size range of 0 to 24 months. It was further stated that "where a size range of 0 to 24 months realistically reflects the normal ages of the intended wearers, such a size range will be accepted by Customs as meeting the 86 centimeter criterion." Customs has maintained its position on this issue since the HTSUS became effective on January 1, 1989. This position is essentially a continuation of Customs treatment of infants' garments under the previous Tariff Schedules of the United States (TSUS).

You have stated in your telephone calls to this office that your garments which are labeled 24 months and 2T are identical in -2-

their specifications. The Customs National Import Specialist for children's wear has supplied this office with information regarding the sizing of garments for infants and toddlers. In some cases, the sizing specifications for 24 months and 2T are identical, however, it is not true in all cases. For instance, in the Fall 1990 Land's End Kids Catalog, the sizing charts indicate that a garment sized 24 months is designed for a child 31-1/2 to 33 inches in height, whereas a 2T is for a child of 33 inches in height with the 3T beginning at 36 inches in height. Size charts for the GapKids and babyGap indicate that size X- Large is designed for a child of 18-24 months and a height of 33 to 34 inches, whereas an age 2-3 size is designed for a child of a height of 36 to 39 inches.

The sizing charts are of course merely guides as children grow at different rates. It is clear that some merchandisers have different sizing for 24 months and 2T, while others view the sizes as the same. However, infants and toddlers garments are viewed as separate divisions within the trade and are generally sold in separate, albeit adjoining, departments within stores. Customs recognized this distinction under the previous tariff, i.e., the Tariff Schedules of the United States Annotated, and, as stated earlier, has continued this recognition under the current tariff, the Harmonized Tariff Schedule of the United States.

In your letter of July 28, 1992, you requested a copy of the written law that states that a garment labeled 24 months is different than one labeled 2 years, and should be classified in a different category regardless of the fact that the measurements of the two garments are the same. There is no written law which specifically addresses this issue. The distinction between these garments and the different treatment accorded them has grown out of a practice which is based upon the commercial realities of the marketplace and the product distinctions made by the children's wear industry. Additionally, we recognize that these garments belong to different size ranges and compete within different channels of trade. The Customs Service's practice of making a distinction between these garments is well-known in the trade.

The United States courts have long recognized that the Customs Service has and does establish uniform practices in regard to the treatment of goods coming into this country. A uniform practice may be established, inter alia, by actual uniform treatment of goods by the various ports. Heraeus- Amersil, Inc. v. United States, 8 CIT 329 (1984), contains a useful discussion of uniform practice. The court in that case denied the defendants motion to dismiss that part of the plaintiff's complaint relating to an established and uniform practice because, although no finding of a practice had been made by the Secretary of the Treasury nor a published ruling on the -3-

matter was being alleged, the court believed the plaintiff could show an established and uniform practice under section 1315(d) by actual uniform liquidations at the various ports over a period of time. Heraeus-Amersil, 8 CIT 329, 333 (1984).

The distinction in classification between garments labeled for children age 24 months and those for children age 2 years falls within the scope of an established and uniform practice. The Court of Customs and Patent Appeals stated in Rank Precision Industries, Inc. v. United States, 68 CCPA 78, 84, 660 F.2d 476, 480 (1981), in regard to a finding of an established and uniform practice, that:

the decision to make or not make a finding of an established and uniform practice is a matter committed solely to agency discretion. It is not for this court to examine the Director's reasons for, or the correctness of his decision in, making a finding, absent a clear abuse of discretion. See Asiatic Petroleum Corp. v United States, 59 CCPA at 23, 449 F.2d at 1312; Washington Handle Co. v. United States, 34 CCPA 80, 86, C.A.D. 346 (1946).

We regret the difficulties you have encountered in regard to the entry of goods at the port of Los Angeles. However, a practice of distinguishing between garments sized 24 months and garments sized 2T exists. Without compelling reasons, we see no reason to change this practice which is consistent with industry practice.

Sincerely,

John Durant, Director
Commercial Rulings Division