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HQ 080289


October 27, 1988

CLA-2 CO:R:C:G 080289 CMR 823143

CATEGORY: CLASSIFICATION

TARIFF NO.: 6206.40.3020; 6204.63.3535; 6203.23.0080; 6203.23.0070;

Mr. Kevin Maher
C-Air Custom House
Brokers-Forwarders, Inc.
153-39 Rockaway Boulevard.
Jamaica, New York 11434

RE: Classification of various two-piece infants' and children's garments

Dear Mr. Maher:

This is in response to your letter of April 8, 1987, on behalf of your client, Twin Togs Creations, Inc., requesting a classification ruling for children's shorts and shirt sets which will be manufactured in Taiwan and the Philippines of chief value synthetic fabric in children's sizes 2-6x. No style numbers are given.

FACTS:

The two submitted samples each consist of matching tops and shorts made of the same fabric. In each sample, the shorts have a partially elasticized waistband with two buttonholes in the front and the back. Buttons appear on the tops which correspond to the buttonholes on the shorts in order to provide a means of attachment of the tops and shorts during wear. Each top is short-sleeved. One style has a full-front, five-button, left- over-right opening and single chest pocket. The other style has a full back three-button opening and sailor-suit-styled collar. The collar is trimmed with a thin strip of dark blue fabric and a dark blue ribbon is featured at the bottom point formed by the collar. These features enhance the appearance of the garment and constitute ornamentation. A V-shaped piece of white fabric, around which the collar is formed, appears in the front.

ISSUE:

Are the tops and shorts of the submitted samples classifiable separately or as playsuits?

LAW AND ANALYSIS:

Headnote 3, Part 6, Schedule 3, Tariff Schedules of the United States Annotated (TSUSA), is applicable in this situation. The relevant portions are as follows:

3. (a) Except as provided in (b) of this headnote, each garment is to be separately classified under the appropriate tariff item, even if 2 or more garments are imported together and designed to be sold together at retail.
(b) The provisions of paragraph (a) of this headnote shall not apply to --

(iii) playsuits, washsuits, and similar apparel....

Headnote 3 removed essentially all garments, except those listed in (b), from consideration under the doctrine of entireties for the purpose of classification. Playsuits are listed in (b), and therefore must meet the test of the doctrine of entireties. To qualify as an entirety, articles, when combined, should form a new article with a different character or use from the parts; or one of the articles or components should predominate with the other components being merely incidental to the predominant part. E.M. Stevens Corp. v. United States, 49 Cust. Ct. 203, 204, Abstract 66971 (1962), appeal dismissed, 53 CCPA 155, C.A.D. 5266 (1966). In addition, when articles imported together as a unit retain their individual identities and are not subordinated to the identity of the combination, the articles will not be considered an entirety and will be classi- fied separately. Donalds, Ltd., Inc. v. United States, 32 Cust. Ct. 310, 315, C.D. 1619 (1954).

Headquarters Ruling Letter (HRL) 075949 of March 3, 1986, sets out the factors considered in determining if garments are classifiable as playsuits under the doctrine of entireties. These include:

1. reference to the Textile Category Guidelines for Fabric and Garments Reported Under Various Textile Categories, C.I.E. 6/87;
2. the way in which the garments are known and marketed; 3. the use of the garments;

4. the construction, design and composition of the garments; and,
5. the manner in which they are worn together.

The pertinent portions of the Textile Category Guidelines, pages 19 and 20, state:

In general, this category covers items of very informal dress for children and is essentially a grouping of children's lightweight playwear garments, although heavier fabrics are also used. Children's two-piece physically connected entireties, such as shirts and shorts having matching buttons and buttonholes, or shoulder loops with suspender straps designed to join the two pieces, which are so manufactured that the use of one without the other is not practicable, are encompassed within this category [637, playsuits, washsuits, etc.].

In this case, it is impracticable to wear the shirts and shorts separately. There is insufficient elastic in the waistband of either pair of shorts to hold them up during wear without the aid of the button attachment to the shirts. In addition, it is impracticable to wear the shirts separately because of the size and placement of the buttons on them.

In HRL 079553 of March 30, 1988, we stated our view that two- piece combination garments are not classifiable as playsuits when they are merely joined at the waist by buttons or other fasten- ers, and do not form a new commercial entity generally recognized as a playsuit. We still adhere to this view. The presence of the button attachment alone is not the basis for classifying these garments as playsuits. In this case, the sample garments are presumed to be designed and used for play. The shirt and shorts are imported and sold together and presumably worn together since any other use of either garment would be impracticable. Considering the factors set out in HRL 075949, we believe that the garments are classifiable under the doctrine of entireties as playsuits.

Note that this ruling should not be interpreted as implying that a specific number of buttons attaching tops and pants will automatically qualify the garments as a playsuit. The means of attachment is a consideration, but it is not the determinative consideration.

HOLDING:

The garments of the sample with the sailor-suit styling are classifiable in the provision for other women's, girls', or infants' wearing apparel, ornamented, of man-made fibers, not knit, . . ., other playsuits, washsuits, sunsuits, and similar
apparel, other, infants', item 384.2544, Tariff Schedules of the United States Annotated (TSUSA), textile category 637. The rate of duty is 22.7 percent ad valorem.

The garments of the other sample are classifiable in the provision for other women's, girls', or infants' wearing apparel, not ornamented, of man-made fibers, not knit, other, other, playsuits, infants', item 384.9414, TSUSA, textile category 637. The rate of duty is 17 percent ad valorem.

Under the proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA) the term "ensemble" means
a set of garments . . . composed of several pieces made up in identical fabric, put up for retail sale, and comprising:
one garment designed to cover the upper part of the body, with the exception of waistcoats which may also form a second upper garment, and
one or two different garments, designed to cover the lower part of the body and consisting of trousers, bib and brace overalls, breeches, shorts (other than swimwear), a skirt or a divided skirt.

When garments are classified as ensemble garments, their rates of duty are the rates which would apply if the garments were entered separately. Since the set of garments in the sample other than the sailor-suit-styled sample includes a top and bottom made up of the same fabric and put up for retail sale together, that set meets the requirements for classification under the provision for ensembles.

We assume the fabric of the samples is synthetic, and not artificial. Synthetic fabrics include nylon and polyester; artificial fabrics include rayon and acetate. Under the proposed HTSUSA, the sailor-suit-styled sample is classifiable in the appropriate provision for women's or girls' garments because it cannot be clearly identified as being either for boys or girls. Note 8, Chapter 62, Section XI, HTSUSA, provides: "Articles of this chapter which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings concerning women's or girls' garments."

The sailor-suit-styled sample is not classifiable as an ensemble, even though the top and shorts are largely made of the same fabric, because the ornamentation and the V-shaped segment of material on the top is not repeated on the shorts. The top of the sample is classifiable in the provision for women's or girls' blouses, shirts and shirt-blouses, of man-made fibers, other, other, with two or more colors in the warp and/or the filling,
girls', imported as parts of playsuits, subheading 6206.40.3020, HTSUSA, textile category 637. The rate of duty is 28.6 percent ad valorem. The shorts are classifiable in the provision for women's or girls' suits, ensembles, . . ., breeches and shorts, of synthetic fibers, . . ., other, shorts, subheading 6204.63.3535, HTSUSA, textile category 637. The rate of duty is 30.4 percent ad valorem.

The top of the other style is classifiable in the provision for men's or boys' suits, ensembles, . . ., breeches and shorts, ensembles, of synthetic fibers, other, shirts, subheading 6203.23.0080, HTSUSA, textile category 640. The rate of duty is 30.9 cents per kilogram plus 27.5 percent ad valorem. This is the rate which would apply if the garments were entered separate- ly and the top was classified in subheading 6205.30.2075, HTSUSA. The shorts are classifiable in the provision for men's or boys' suits, ensembles, . . ., breeches and shorts, ensembles, of synthetic fibers, other, shorts, subheading 6203.23.0070, HTSUSA, textile category 647. The rate of duty is 29.7 percent ad valorem. This is the rate which would apply if the garments were entered separately and the shorts were classified in subheading 6203.43.4035, HTSUSA.

This classification represents the present position of the Customs Service. If there are changes before the HTSUSA becomes effective, this advice may not continue to be applicable.

Sincerely,

John Durant, Director
Commercial Rulings Division

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