HQ 952326: Classification of certain infants' and toddlers' cotton garments and accessories; underwear v. sleepwear

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952326

                         January 6, 1993

CLA-2 CO:R:C:T  952326  CMR

CATEGORY: Classification

TARIFF NO: 6111.20.6040, 6505.90.1515 

Mr. Thomas Hertwig
Leisure Sports
P.O. Box 58444
Los Angeles, Cal.  90058

RE: Classification of certain infants' and toddlers' cotton
    garments and accessories; underwear v. sleepwear

Dear Mr. Hertwig:

     This ruling is in response to your request of July 28, 1992,
regarding the classification of certain children's garments and
other articles imported from Taiwan.  Customs will only address
the classification of three of the articles submitted with this
request as the remaining articles are currently the subject of an
internal advice request which you filed on July 21, 1992, and a
protest filed on August 25, 1992.

FACTS:

     Style 906 is an upper body garment made from finely knit
cotton jersey fabric.  The garment has a round neck with rib knit
capping, a full front opening secured by five 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-24M.

     Style 803 is a cardigan style upper body garment made from
finely knit cotton jersey fabric.  The garment has a V-neck
styling, full-front opening secured by four snaps, rib knit trim
along the neckline and front of the garment and along the straight
bottom, and long sleeves with rib knit cuffs.  The fabric
background is white with blue and pink prints of rabbits.  The
submitted sample is size 24M.  The garment will be imported in
sizes 3M-24M.
                               -2-


     Style 802 is an infant's bonnet.  It is made of finely knit
cotton jersey fabric and has a woven lining.  The knit and woven
fabrics are connected at the front by rib knit binding which also
forms the fabric ties.  The submitted sample has no size marking. 
The article will be imported in sizes 3M-24M.

     All of the samples 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".  You have indicated to this office that the garments
are imported as separates and sold as separates.  Due to other
requests filed by you, this office is aware that although the
garments at issue herein are only upper body garments, they are
part of a collection of garments consisting of various matching
prints.

ISSUE:

     Are the samples at issue classifiable as sleepwear, underwear
or outerwear?

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, 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.
                               -3-


     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.  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.

     The CPSC stated in its garment assessments on styles 906 and
803 that these garments are made from fabric that is suitable for
sleepwear and in the weight range of traditional sleepwear fabric.

     Regarding the packaging and labeling of the garments, Customs
has stated in earlier rulings that labeling will not dictate
classification.  In 088564 of February 28, 1991, Customs stated in
ruling on garments similar to those at issue herein:
                               -4-


          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 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.]
                               -5-


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. 
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.  

HOLDING:

     Styles 803 and 906 are classifiable as sleepwear garments. 
The garments are classifiable as babies' other cotton knit garments
in subheading 6111.20.6040, HTSUSA, textile category 239, dutiable
at 8.6 percent ad valorem.

     Style 802 is classifiable as a babies' knitted cotton hat in
subheading 6505.90.1515, HTSUSA, textile category 239, dutiable at
8.4 percent ad valorem.

     The designated textile and apparel category may be subdivided
into parts.  If so, the 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 renegotiations and changes, to obtain the most current
information available, we suggest you check, close to the time of
shipment, the Status 
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your local Customs office.
                               -6-


     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 importation of this merchandise to
determine the current status of any import restraints or
requirements.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division