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HQ 089790

June 23, 1991

CLA-2 CO:R:C:T 089790 PR



Diane L. Weinberg, Esquire
Sandler, Travis Rosenberg
505 Park Avenue
New York, New York 10022-1106

RE: Classification of Children's Underwear Sets--Distinguished from Sleepwear

Dear Ms. Weinberg:

This is in reply to your submission of June 27, 1991, on behalf of Impact Imports International, Inc., concerning the classification of certain children's apparel sets. You indicate that one small sample shipment of the merchandise in question has been detained by our Area Director, John F. Kennedy International Airport, because the garments failed to comply with the Consumer Product Safety Commission's (CPSC) flammability standard for children's sleepwear (16 CFR 1615.3 and 1616.3), but that this request concerns a series of future transactions. Our ruling on the matter follows.


A sample set of apparel was submitted. It 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 a size 10 and to be a product of Turkey. There is no indication on the garment or the accompanying labeling that these garments are intended to be worn exclusively or mainly by boys or by girls. The label, hang tag, and clear plastic packaging all contain the statement that the set is underwear and should not be used as sleepwear.


The issue presented is whether the sample garments are classifiable under headings which include underwear, or whether they are classifiable as pajamas (sleepwear).


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 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. 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. HRL 088192, February 20,1991. In this connection, the inquirer has furnished evidence to this office that it only sells underwear, that all its customers only sell underwear (or that the departments of the large stores it sells to are not the departments within those stores which merchandise sleepwear), and that the subject garments are ordered, invoiced, and purchased as underwear.

In view of the interest shared by the U.S. Customs Service and CPSC concerning the identification of children's sleepwear, we have consulted with representatives of CPSC on this matter and on the distinction between underwear and sleepwear in general. They stated that CPSC's present position is that tight fitting garments of the type here involved are not considered to be sleepwear and, therefore, not subject to the requirements of the Flammable Fabrics Act (15 U.S.C. 1191-1204).

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.

In Customs Headquarters Ruling Letter (HQRL) 088564, dated February 28, 1991, a two-piece garment set, somewhat similar to the subject garments, was held to fall within the class of garments primarily used as sleepwear. This ruling has been cited as requiring a sleepwear classification for the instant garments.

In HQRL 088564, Customs relied on trade magazine articles, catalogues, our own personal experiences with similar types of merchandise, and the appearance of the samples. The garments which were the subject of HQRL 088564 were made from a heavier weight fabric and were significantly looser fitting than the ones presented for this ruling. As a matter of interest, during our recent conference with CPSC concerning children's sleepwear garments, it was determined that CPSC would also consider the garments which were the subject of HQRL 088564 to be sleepwear and subject to the requirements of the Flammable Fabrics Act.

Note 13, Section XI, HTSUSA, provides that unless "the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale." Accordingly, the garments comprising the sample set are classifiable separately.

Chapter 61, Note 8, HTSUSA, provides that articles "which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified under the headings covering women's or girls' garments."


The sample garments are classifiable as follows: (1) the bottom portion under the provision for other girls' cotton underwear, in subheading 6108.91.0025, HTSUSA, with duty at the rate of 9 percent ad valorem (textile and apparel category 352); (2) the upper portion under the provision for girls' cotton knit underwear, in subheading 6109.10.0037, HTSUSA, with duty at the rate of 21 percent ad valorem (textile and apparel category 352).

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

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 renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.


John Durant, Director

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