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HQ 958856




March 24, 1997

CLA-2 RR:TC:TE 958856 ASM

CATEGORY: CLASSIFICATION

Tariff No.: 6107.21.0020

Mr. Ba-sang Yeung
Second Secretary, Hong Kong Economic and Trade Affairs Hong Kong Economic and Trade Office
British Embassy
1150 18th Street, N.W., Suite 475
Washington, D.C. 20036

RE: Classification of infant boys 100 percent cotton knit sets
Your Case No. HK 35/95

Dear Mr. Yeung:

This letter concerns your request that we review the tariff classification of certain boys 100 percent cotton, interlock knit shorts and pullover shirts, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The subject items consist of boys' shorts and pullover shirts produced in Hong Kong. The shirt has short, capped sleeves, a sewn-on rib knit neckband, and a hemmed bottom. The pull-on shorts have a fully elasticized fabric covered waistband and hemmed fabric at the leg openings. The shorts lack a fly opening. Both garments feature all-over patterns of brightly colored planets and spacecrafts printed on white fabric. The items are sized for boys' 4 to 16.

In your correspondence to us, you note that at the Seattle, Washington, port of entry, the U.S. Customs Service designated category 338/339 and 352 visas for the upper and lower garments respectively. Although you concur that if the upper garment is considered on its own, it is classifiable as an outerwear shirt in category 338/339, you state that Customs has separately classified the matching lower garment as underwear in category 352, which you deem to be inconsistent. It is your opinion that the upper garment should also be considered as underwear since both are made of the same fabric. However, you further note that in Visa Case No. V2/95, garments similar to the subject ones were classified as pajamas in Category 351 which would now provide the basis for the garments in question to be classified as pajamas under
Category 351.

ISSUE:

Whether the subject garments are properly classified as boys' underwear or sleepwear under the HTSUSA.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

The underwear and sleepwear provisions of the HTSUSA are eo nomine by use based provisions. Additional U.S. Rule of Interpretation 1(a), of the HTSUSA, states that "In the absence of special language or context which otherwise requires-- a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." See Headquarters Ruling Letter (HQ) 088564, February 28, 1991.

Accordingly, in order to determine the proper tariff classification of the subject items, we must assess their principal use at, or immediately prior to, the date of importation. It is our understanding that the subject articles are imported and packaged for sale as sets. Commercially, such packaging is typical of pajama sets. Furthermore, the shorts do not have a fly front opening, a common feature of underwear or briefs.

The classification of boys' knit apparel was also the subject of HQ 089790, dated December 30, 1993, in which boys knit pullover shirts and pants were determined to be classified under subheading 6107.21.0020, HTSUSA, as pajamas rather than as underwear. The garments in this ruling appear to be substantially similar to the garments at issue in that they consisted of a two piece knit set with pull on pants having an elasticized fabric covered waistband and no fly opening.

Based on the foregoing, it is our determination that the principal use of these items will be as sleepwear and not underwear. It is also important to note that although Customs is not bound for tariff classification purposes by the determinations of the Consumer Product Safety Commission (CPSC), in HQ 089790, dated July 3, 1991, it was recommended that Customs utilize the CPSC standards whenever possible, to ensure uniformity between the two Agencies. With respect to children's sleepwear, the CPSC has issued a publication entitled, Supplemental CPSC Staff Guide To the Enforcement Policy Statements of the Flammability Standard for Children's Sleepwear. - 3 -

After consultation with the CPSC, it is our shared opinion that based on the measurements contained in this publication, the items are considered to be children's sleepwear for the purposes of the Flammable Fabrics Act. In addition, the CPSC has published a notice involving a stay of enforcement of the sleepwear requirements against skin-tight or nearly skin-tight garments currently being used as sleepwear that are labeled as underwear. As such, you should contact the CPSC to determine whether or not the articles in question are subject to this notice.

HOLDING:

The boys cotton knit pullover shirt and matching shorts are classifiable under the provision for "Men's or boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightshirts and pajamas: Of cotton; Boys'" in subheading 6107.21.0020, HTSUSA. This provision is dutiable at the column one rate of 9.3 percent ad valorem. The textile restraint category is 351.

As the garments at issue are considered sleepwear garments by Customs and the Consumer Product 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 designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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