CLA-2 CO:R:C:T 955384 CMR
TARIFF NO: 6107.21.0020
Mr. Tommy Lai
Hong Kong Economic and Trade Office
1150 18th Street, N.W., Suite 475
Washington, D.C. 20036
RE: Classification of boys' knit apparel; pajamas v. underwear
Dear Mr. Lai:
This ruling is in response to your request of November 15,
1993, on behalf of Lifeguard Apparel Inc., regarding the
classification of certain boys' knit apparel entered through the
port of New York (air/seaport). Sample garments were received with
your request, your reference HK 152/93.
FACTS:
The submitted garments consist of a knit pullover shirt and
knit pants. Both garments are made of the same 60 percent
cotton/40 percent polyester waffle knit fabric. The pullover has
long sleeves with rub knit cuffs, a round neckline with rib knit
fabric trim, and a hemmed straight bottom. The pull-on pants have
an elasticized fabric covered waistband and rib knit cuffs at the
ankles. The pants do not have a fly opening.
The garments at issue are sized for boys 4 to 16. The
submitted samples are sized for boys 10/12 and feature all-over
dinosaur patterns in vivid colors on a white background. Both
garments contain labels which state "underwear not intended for
use as sleepwear".
ISSUE:
Are the submitted garments classifiable as boys' pajamas or
underwear of heading 6107, HTSUSA?
-2-
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 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:
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.
In determining principal use, Customs will consider how a
garment is viewed commercially, i.e., how it is marketed and
advertised. No information has been submitted in this regard other
than that the subject garments are imported and packaged for sale
as sets. Additionally, each garment has a label indicating the
garment is underwear not intended for use as sleepwear.
If the garments at issue are classifiable as pajamas, i.e.,
sleepwear, then they are subject to the requirements of 16 CFR
Parts 1615 and 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. On January 13,
1993, the Consumer Products Safety Commission (CPSC) published
notice in the Federal Register (58 FR 4078) of a stay of
enforcement of the sleepwear requirements of 16 CFR Parts 1615 and
1616 against skin-tight or nearly skin-tight garments currently
being used as sleepwear that are labeled and marketed as underwear.
-3-
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 considers
all relevant information, including garment assessments provided
by the CPSC. The National Import Specialist who reviewed this
merchandise has informed this office that the CPSC was consulted
regarding the garments at issue. Based upon an examination of the
garments and utilizing the criteria contained in the CPSC
publication cited above, the CPSC considered the garments to be
sleepwear. 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.
As to the labels indicating that the garments are underwear,
in HRL 088564 of February 28, 1991, Customs stated in regard to
similar garments and labels:
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]. -4-
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
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."
The garments at issue are packaged and sold as a set, much
like pajamas are. The pull-on pants at issue lack a feature
normally associated with boys' underwear, i.e, a fly opening.
The fabric and the colorful print of the garments are more
suggestive, in our view, of pajamas than underwear. After
examining the garments at issue and considering the CPSC
assessment, this office believes that the garments at issue are
properly classified as pajamas, regardless of the labelling.
HOLDING:
The submitted garments are classifiable as boys' cotton
pajamas in subheading 6107.21.0020, HTSUSA, textile category 351,
dutiable at 9.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division