CLA-2 CO:R:C:T 952567 CMR
TARIFF NO: 6111.20.6040, 6108.91.0040, 6301.30.0020,
Mr. John H. Heinrich
District Director
U.S.Customs Service
300 South Ferry Street
Terminal Island, CA. 90731
RE: Protest 2704-92-103469 of August 25, 1992; Internal Advice
Request 60/92 of July 21, 1992; Classification of infants'
and children's sleepwear v. underwear v. playwear;
classification of garments sized 2Y (years) v. 24 months
Dear Mr. Heinrich:
This ruling is in response to the above cited protest filed
against your action of refusing entry of certain cotton wearing
apparel for infants and children under the provisions for
underwear. In addition, the protestant is protesting the
classification of garments sized 2Y as children's garments as
opposed to babies garments.
FACTS:
Protestant attempted entry of his goods as underwear garments
of subheading 6111.20.6030, HTSUSA, which provides for babies'
garments of cotton, other, imported as parts of sets (597 dozen),
and subheading 6109.10.0037, HTSUSA, which provides for T-shirts,
singlets, tank tops and similar articles, knitted or crocheted,
women's or girls' underwear (198 dozen). The entry was rejected
for improper description/classification on the entry form (CF
7501). Protestant is protesting Customs refusal to allow entry of
his goods as underwear garments as described on his entry form.
He is also protesting Customs distinction between garments sized
24 months and garments sized 2Y (years).
A request for internal advice was made by letter dated July
21, 1992, and was followed by the filing of an exclusion protest
on August 25, 1992. As the internal advice request and the protest
are duplicative, Customs is responding only to the -2-
protest. Additionally, protestant filed a request for
reconsideration of Customs ruling 952285 of August 10, 1992, which
responded to protestant's earlier request regarding Customs
practice to distinguish between garments sized 24M and garments
sized 2T or 2Y. As that matter is at issue herein also, Customs
will respond to it in this protest and will not issue a separate
ruling on the reconsideration.
The entry at issue includes garments for infants and toddlers
and accessories items such as bibs and blankets. Samples of the
articles at issue were forwarded to this office along with the
protest. The items include styles 500, 600, 801, 806, 901, 904,
905 and 1010. The merchandise is imported from Taiwan.
Style 500 is an infant's receiving blanket. It is made from
two layers of finely knit cotton jersey fabric with rib knit
capping sewn along the edges of the blanket. The blanket measures
87 centimeters by 76 centimeters. It has a triangular piece of
fabric sewn at one corner to fit over the top of the baby's head.
Style 600 is a lower body garment. It is made of finely knit
cotton jersey fabric. The garment has an elasticized waist and
short legs with rib knit capping at the leg openings. The fabric
background is blue with white, green and blue prints of fish and
stars. The submitted sample is size 24M, however the item will be
imported in sizes 3M, 6M, 12M, 24M, 2Y, 3Y and 4Y.
Style 801 is an infant's bib. It is made from two layers of
finely knit cotton jersey fabric that is connected at the edges by
rib knit capping with also forms the fabric ties.
Style 806 is a coverall. It is made from finely knit cotton
jersey fabric. It has a rib knit round neck, long sleeves with
rib knit cuffs, and a full front snap opening which extends down
both pant legs to rib knit ankle cuffs. The fabric background is
white with red, blue, yellow and green prints of airplanes and
flying saucers. The submitted sample is size 24M. The garment
will be imported in sizes 3M, 6M, 12M, 24M, 2Y, 3Y and 4Y.
Style 901 is an upper body garment made from finely knit
cotton jersey fabric. The garment has a round neck with rib knit
capping, lap shoulders, short sleeves with rib knit capping, and
a straight hemmed bottom. The fabric background is blue with
white, green and blue prints of fish and stars. The submitted
sample is size 3M. The garment will be imported in sizes 3M, 6M,
12M, 24M, 2Y, 3Y and 4Y.
-3-
Style 904 is an upper body garment made from finely knit
cotton jersey fabric. The garment has a round neck with rib knit
capping, a partial front opening secured by two buttons, short
raglan sleeves with rib knit capping, and a straight hemmed
bottom. The fabric background is blue with white, green and blue
prints of fish and stars. The submitted sample is size 12M. The
garment will be imported in sizes 3M, 6M, 12M, 24M, 2Y, 3Y and 4Y.
Style 905 is an upper body garment made from finely knit
cotton jersey fabric. The garment has a round neck with rib knit
capping, a partial front opening secured by two buttons, long
raglan sleeves with rib knit cuffs, and a straight hemmed bottom.
The fabric background is blue with white, green and blue prints
of fish and stars. The submitted sample is size 24M. The garment
will be imported in sizes 3M, 6M, 12M, 24M, 2Y, 3Y and 4Y.
Style 1010 is a lower body garment made from finely knit
cotton jersey fabric. The garment has an elasticized waist, a back
inset panel, and long legs with rib knit ankle cuffs. The fabric
background is blue with white, green and blue prints of fish and
stars. The submitted sample is size 12M. The garment will be
imported in sizes 3M, 6M, 12M, 24M, 2Y, 3Y and 4Y.
The additional samples from the warehoused entry are
essentially the same as the samples received with the protest
except they consist of various print patterns. The print patterns
include: a white background with pink, blue, yellow and green pigs
on it; a blue background with white print rabbit faces; a white
background with blue and white bunnies; and a white background with
blue, green, yellow and pink animals. The garments are not clearly
intended for wear by boys or by girls and therefore are viewed as
unisex.
All of the sample garments are packaged in individual polybags
which contain the statement "Quality underwear for infants and
children" on the front bottom right corner of the polybags. The
sewn in labels in the garments state "100 percent cotton, not
intended for sleepwear".
To support his position that the garments are underwear, the
protestant has submitted purchase orders and documents described
as business worksheets. The purchase orders from Nordstrom
describe individual styles, some with the same style numbers as
those at issue herein. However, the descriptions are brief, e.g.,
L/S cardigan, long pant, girl 1 piece coverall, shorts, cardigan
jacket, etc. The purchase orders do not characterize the garments
in any manner beyond the brief descriptions just noted. An
advertisement for Nordstrom was also submitted, but -4-
while the advertisement indicates that Nordstrom sells "Les Enfants
long underpants and long sleeve undershirts, 3-6-12-24 months", it
does not show the garments being referenced.
The business worksheets appear to be mostly letters between
the protestant and a retailer. These letters refer to many of the
same styles at issue and contain information regarding sizing,
quantity, price and brief descriptions. Three of the letters from
the protestant to the retailer do refer to the garments as
underwear.
From notes on documents in the file received by this office
it is apparent the protestant indicated to Customs field personnel
that the garments at issue are underwear sets and a copy of the
original CF 7501 entry form indicates that the babies' garments
were described thereon as parts of sets. However, in a telephone
conversation with a member of this office, the protestant indicated
that the garments were not sets as evidenced by the individual
packaging. Regarding the toddler's garments (tops and bottoms),
the original 7501 indicates they were all identified as cotton
underwear classifiable under heading 6109, HTSUSA, which provides
for T-shirts, singlets, tank tops and similar articles, knit or
crocheted.
ISSUE:
Are the garments at issue for babies and toddlers classifiable
as sleepwear, underwear or outerwear?
Why are garments sized 24M and garments sized 2Y classifiable
differently?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
The classification of babies' and children's garments
substantially similar to the garments at issue herein has been
addressed in several ruling letters issued by this office. See,
HRL 088564 of February 28, 1991; HRL 089790 of July 3, 1991; HRL
089958 of November 18, 1991; HRL 089959 of November 18, 1991; and
HRL 089889 of July 29, 1991. In HRL 088564 of February 28, 1991,
Customs stated:
-5-
Customs views the underwear and sleepwear provisions of
the tariff schedule to be eo nomine by use provisions. That
is, whether or not merchandise is classifiable under these
provisions is dependent on whether the 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.
If the garments at issue are classifiable as sleepwear, then
they are subject to the requirements of 16 CFR Part 1615 and 16
CFR Part 1616 regarding fire retardant requirements for children's
sleepwear. These provisions of the Code of Federal Regulations
were promulgated in order to enforce the Flammable Fabrics Act
(FFA) (Sec. 5, Pub. L. 90-169, 81 Stat. 569; 15 U.S.C. 1191-1204),
as it applies to children's sleepwear.
Since the inception of the Consumer Products Safety Act of
1972, the Consumer Products Safety Commission (CPSC) has been
tasked with the enforcement of the FFA. In an effort to bring some
clarity to obviously difficult determinations, the CPSC has issued
a publication called Supplemental CPSC Staff Guide To The
Enforcement Policy Statements of the Flammability Standard For
Children's Sleepwear. This publication sets out the criteria the
CPSC has developed to determine whether certain types of garments
are considered children's sleepwear for purposes of the FFA. See,
HRL 089790 of July 3, 1991.
In viewing the garments at issue herein, Customs will consider
all relevant information, including garment assessments provided
by the CPSC, which this office understands were requested by the
protestant. In HRL 089790, Customs stated:
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. -6-
The CPSC stated in its garment assessments on styles 904, 600,
905, 1010, 806, and 901 that these garments are made from fabric
that is suitable for sleepwear and in the weight range of
traditional sleepwear fabric.
Although the garments are individually packaged, it appears
there is confusion as to whether they are sold as sets. Customs
believes it is reasonable to assume with tops and bottoms of
matching fabrics, consumers will purchase the garments as sets.
This view is shared by CPSC which looks not at whether garments
are packaged together, but whether they are sold in close proximity
to one another to enable and encourage purchase of the garments as
sets.
For classification purposes, however, Customs must classify
the garments in their condition as imported. In their condition
as imported, the garments are separately packaged in individual
polybags as separates. Additionally, the protestant has indicated
to this office that the garments remain separately packaged for
retail sale. Therefore, Customs will classify the garments as
separates, not as sets. However, in determining what the garments
are, i.e., sleepwear or underwear or playwear, Customs will
consider how the garments are sold.
The protestant relies upon the packaging which indicates the
garments are "quality underwear" and the labeling which states the
garments are "not intended for sleepwear". Customs has
stated in earlier rulings that labeling will not dictate
classification. In HRL 088564 of February 28, 1991, Customs stated
in ruling on garments similar to those at issue herein:
While the labels in each of the garments forming the set
are a factor to be considered in the classification of those
garments, the labels are not dispositive of the garments
identity. Such labels are self-serving and will not prevent
the garments from being used in whatever manner the purchaser
desires. As an article in the April 1990 issue of Kids
Fashions, at page 32, points out, by law, retailers can't call
garments of this nature sleepwear because the material does
not meet the flammability standards set by the government;
however, how the garments will be used is a decision that is
left to the parents. [emphasis added].
In the Matter of Sun and Sand Imports, Ltd., CPSC Docket No.
83-1, 8, the administrative law judge in addressing the issue of
garment labeling stated in his opinion:
In the absence of any contrary evidence, it therefore
appears that "Footsie" and probably, "Nectarine" as well, were
not being promoted as sleepwear by Respondents after -7-
April 1982. However, the nature of Respondent's promotion of
the product itself is not controlling. Other factors must be
considered. This is particularly true because in the case of
children's wear, those who suffer the
consequences of unnecessary burns are not responsible for
disregarding the label. Therefore, despite contrary labeling,
the nature of the product and the likelihood that it will be
used by children for sleeping must be carefully evaluated
before any determination can be made as to whether particular
items fall within the definition of "Children's Sleepwear."
In determining for tariff classification purposes if a garment
is sleepwear, when CPSC garment assessments are available, Customs
will give considerable deference to those assessments, unless they
are blatantly unreasonable. The assessments aid Customs in making
sometimes difficult classification decisions and, as we are charged
with enforcing other agencies' regulations with regard to goods
imported into the United States, we will seriously consider
information received from those other agencies when it relates to
the particular goods subject to their oversight. In the case of
the CPSC and the FFA, 15 U.S.C.A. 1198 states, in relevant part,
in regard to shipments from foreign countries:
An imported product, fabric, or related material to which
flammability standards under this chapter are applicable shall
not be delivered from customs custody except as provided in
section 1499 of Title 19. [emphasis added.]
19 U.S.C.A. 1499 states, in relevant part:
Imported merchandise, required by law or regulations
made in pursuance thereof to be inspected, examined, or
appraised, shall not be delivered from customs custody, except
under such bond or other security as may be prescribed by the
Secretary of the Treasury to assure compliance with all
applicable laws, regulations and instructions which the
Secretary of the Treasury or the Customs Service is authorized
to enforce until it has been inspected, examined, or appraised
and is reported by the appropriate customs officer to have
been truly and correctly invoiced and found to comply with the
requirements of the laws of the United States. [emphasis
added.]
Having examined the garments at issue, Customs view the CPSC
assessments on these garments to be reasonable and we concur. The
garments at issue are manufactured of soft cotton knit jersey
fabric with colorful print designs. The cotton fabric is of a
weight and thickness normally associated with sleepwear garments. -8-
It is difficult to imagine a child or infant wearing these garments
under other clothing as underwear. Based upon an examination of
the garments, past Customs rulings on similar
garments and the garment assessments from the CPSC, we believe the
garments at issue are of a class or kind that will be principally
used as sleepwear and so should be classified as such.
In regard to the second issue protested by the protestant,
that of the distinction Customs makes between garments sized 24M
and garments sized 2Y, we will not repeat what was stated in HRL
952285 of August 10, 1992 in response to the protestant's earlier
request for a ruling on the issue. Suffice to say, our position
has not changed since the issuance of that ruling. We would like
to add, however, that the purchase orders and business worksheets
submitted by the protestant further support the position of the
Customs Service in regard to this matter. A distinction is made
in these documents between garments sized 24M and 2Y. The
distinction is not only made in ordering sizes, but apparently also
in setting prices. This we believe supports our position that
infants and toddlers garments are recognized by the trade as
separate markets; if not, why price garments sized 24M differently
from garments sized 2Y. Customs believes a distinction exists in
the trade and has, as stated in HRL 952285, a well-known practice
of distinguishing these garments for tariff classification
purposes.
HOLDING:
Regarding the classification of styles 600, 806, 901, 904,
905 and 1010, the garments are properly classifiable as sleepwear
garments. As the protestant has indicated to this office that the
garments are not imported or sold as sets, the garments are not
classifiable as sets or as parts of sets.
Styles 600, 1010, 901, 904, 905 and 806, when imported in
sizes 0-24 months, are classifiable as babies' other cotton knit
garments in subheading 6111.20.6040, HTSUSA, textile category 239,
dutiable at 8.6 percent ad valorem.
Styles 600, 1010, 901, 904, 905 and 806, when imported in
sizes 2Y-4Y, are classifiable as girls' other cotton knit garments,
similar to nightdresses and pajamas, in subheading 6108.91.0040,
HTSUSA, textile category 350, dutiable at 9 percent ad valorem.
The classification of style 500, the receiving blanket, is
not in dispute. The article is classified as a cotton blanket in
subheading 6301.30.0020, HTSUSA, textile category 369, dutiable at
9.5 percent ad valorem.
-9-
The classification of style 801, a bib, is also not in
dispute. The article is classified as a babies' knit clothing
accessory of cotton in subheading 6111.20.6040, HTSUSA, textile
category 239, dutiable at 8.6 percent ad valorem.
As the garments at issue are considered sleepwear garments by
Customs and the Consumer Products Safety Commission, as indicated
in garment assessments received by Customs, the garments must meet
the requirements set forth in the Flammable Fabrics Act and 16 CFR
1615, 1616. Failure to meet these requirements will require
Customs to prohibit entry into the commerce of the United States
as required by 15 U.S.C. 1198 and 19 U.S.C. 1499.
The protest should be denied. A copy of this report should
be attached to the CF 19, Notice of Action, to be sent to the
protestant.
Sincerely,
John Durant, Director