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
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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
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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