HQ 951206: Classification of children's garments; sleepwear v. underwear

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 951206

                        September 3, 1992


CLA-2  CO:R:C:T  951206  jb

CATEGORY:  CLASSIFICATION

Thomas H. Milch, Esq.
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036-6885

RE:  Classification of children's garments; sleepwear v.
     underwear

Dear Mr. Milch:

     This is in response to your letter, dated April 8, 1992, on
behalf of Sara's Prints, Inc., requesting a clarification of
Headquarters Rulings (HQ) 089790, dated July 3, 1991, and HQ
089889, dated July 29, 1991, concerning the classification of
children's garments as sleepwear or underwear.  Samples of the
garments were received by this office.

     Two sets of garments were submitted to this office.  The
first set, referred to as KidBasix, consists of two fine rib-
knit cotton garments--upper and lower body coverings.  The upper
portion is a long sleeve pullover.  It has cuffs, a neckband, and
a straight hemmed bottom.  The lower portion of the set is a
pants-like garment with an elasticized waist and cuffs at the leg
ends.  Both garments appear to be close fitting.  The set is
stated on the label to be size 10 and to be a product of Turkey.

     The second set, referred to as Sara's Prints, Style 1000,
consists of a two piece garment set of 100 percent cotton, rib
knit.  The top is long sleeve with a rib trim baseball style neck
and rib trim at the wrists.  The bottom has an elasticized waist
and rib trim at the ankles.  The set is stated on the label to be
size 10 and to be a product of Israel.

     In an initial letter dated February 25, 1992, you  requested
a ruling on the classification of Style 1000, on behalf of Sara's
Prints.  Subsequently, in your letter dated April 8, 1992, you
withdrew that request, but reaffirmed a request for a written
explanation with respect to HQ 089790 and HQ 089889.
     Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's).  GRI 1 requires that
classification be determined according to the terms of the
section and chapter notes and, unless otherwise required,
according to the remaining GRI's.  When goods cannot be
classified solely on the basis of GRI, the remaining GRI's will
be applied.

     The underwear and sleepwear provisions of the tariff
schedule are eo nomine, by use provisions.  That is, merchandise
is classifiable under the appropriate provision if merchandise is
used as sleepwear or 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. 
Principal use is that use which exceeds each other single use.
In order to determine the principal use of merchandise, Customs
will usually look to how that merchandise is viewed in the
commercial arena (See, HRL 088192, February 20, 1991).  

     In view of the interest shared by the U.S. Customs Service
and the Consumer Product Safety Commission (CPSC) concerning the
identification of children's sleepwear, Customs has consulted
with representatives of CPSC on this matter and on the
distinction between underwear and sleepwear in general.

     In HQ 089790, dated July 3, 1991 and HQ 089889, dated July
29, 1991, Customs stated that:
     
     The CPSC has issued a publication called Supplemental CPSC
     Staff Guide To The Enforcement Policy Statements of the
     Flammability Standard For Children's Sleepwear.  In that
     publication, CPSC has set out the criteria it developed to
     be used in determining whether certain types of garments are
     considered to be children's sleepwear for purposes of the
     Flammable Fabrics Act.  The information and criteria
     contained in the CPSC publication is the result of that
     agency's extensive research in the sleepwear area.

     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 enforcement guide is based on the enforcement policy
statement (16 C.F.R. 1615.64(c)(2) and 1616.65(c)(2)) which
identifies three factors as relevant in determining whether a
particular garment is an item of children's sleepwear:

     1.   The nature of the product and its suitability for use
          by children for sleeping or activities related to
          sleeping.

     2.   The manner in which the product is distributed and
          promoted.

     3.   The likelihood that the product will be used by
          children for sleeping or activities related to sleeping
          in a substantial number of cases.

     The enforcement guide, however, has certain inherent
limitations.  First, the illustrations in the enforcement guide
are not all inclusive.  Second, the information provided in the
enforcement guide, is intended to provide additional guidance
only to that contained in the enforcement policy statement and
the definition of sleepwear in the sleepwear flammability
standards.  

     Despite the guidance provided in the policy statement and
the enforcement guide, the CPSC has continued to find 100 percent
cotton and cotton blend garments marketed as sleepwear but which
do not comply with the flammability requirements.  The Commission
staff also encountered garments that, by virtue of their design
and characteristics, ordinarily would be regarded as playwear,
but are promoted or displayed in catalogs or at retail in a
manner which leads prospective purchasers to view the garments as
sleepwear.  Again, this would cause these garments to fall within
the definition of sleepwear.  Finally, rapid and subtle changes
in the design, construction, marketing, and use of children's
garments, often on a seasonal basis, have resulted in garments
which, although previously regarded or used as playwear, are now
being purchased or used solely or primarily for sleeping.

     When HQ 089790 was issued, these issues were apparent and
discussions had commenced on plausible solutions to ameliorate
the situation.  HQ 089889 was a response to those problems and
was based on the cooperative efforts of CPSC.  HQ 089889 was not
a binding ruling as no merchandise was classified at that time. 



     As was stated in HQ 089889, your client can still submit
merchandise for classification, at which time that merchandise
will be classified as either underwear or sleepwear according to
its condition at the time of importation. 

     Because garments of this nature are suitable for sleepwear
and likely to be used primarily as sleepwear in a substantial
number of cases, CPSC is assessing each garment on a case by case
basis.  In addition, CPSC is no longer excluding a garment from
classification as sleepwear based solely on the fact that it is
skin tight or tight fitting.  A variety of factors are being
considered including fabric weight, color, print pattern,
construction details, promotion, marketing and consumers' use of
the garment.

     Accordingly, CPSC is sending a letter of advice to all
interested parties whose garments are assessed as sleepwear and
do not comply with the applicable sleepwear standard by virtue of
its style and/or marketing.  That letter will include a garment
assessment conducted by the CPSC staff, a request to stop sale
immediately and a request for other remedial action, where
appropriate.  In time, all parties will have been contacted and
consequently, all rulings will be consistent and treated equally
for classification purposes.

     In your letter you requested an explanation for the
difference in treatment between the submitted garment and that of
"Kidbasix".  In determining the principle use of the garment,
Customs reviewed how the merchandise is viewed in the commercial
area.  In this connection, Kidbasix furnished evidence that it
only sells underwear, that all of its customers only sell
underwear, and that the subject garments are ordered, invoiced,
and purchased as underwear.  Sara's Prints did not supply any
information supporting the fact that it only sells a certain kind
of apparel (i.e., underwear or sleepwear).

     It has also been brought to our attention that since your
letter of April 8, 1992, CPSC has issued you a letter explaining
their policy and the effects of their determinations on any past,
present and future shipments of similar garments.

     If you should have further questions, we will be happy to
respond at such time.



                           Sincerely,



                           John Durant, Director
                           Commercial Rulings Division