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HQ 952567


January 6, 1993

CLA-2 CO:R:C:T 952567 CMR

CATEGORY: CLASSIFICATION

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.

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:

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.

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

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