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HQ 089889

July 29, 1991

CLA-2 CO:R:C:T 089889 PR


Thomas H. Milch, Esquire
Arnold & Porter
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036

RE: Revocation of NYRL 837926 and NYRL 821741; Classification of Children's Sleepwear vs. Underwear

Dear Mr. Milch:

This is in reference to your recent letters on behalf of your client, Sara's Prints, Incorporated. That company was the recipient of two ruling letters, NYRL 837926, dated March 16, 1989, and NYRL 821741, dated March 3, 1987, classifying certain two-piece cotton knit garment sets under subheadings in the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) which provide for underwear and underwear-type garments.

We have had occasion to review those rulings and find that they may not be in accord with the views of the Customs Service. In Customs Headquarters Ruling Letter (HRL) 089790, dated July 3, 1991, copy enclosed, Customs stated:

The CPSC [Consumer Product Safety Commission] 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 view of the above, the two cited rulings addressed to your client may result in merchandise being classified under incorrect provisions of the tariff schedules if the imported garments fail to comply with the standards followed by both the CPSC and the Customs Service.

Accordingly, pursuant to Section 177.9(d)(1), Customs Regulations (19 CFR 174.9), the two ruling letters, NYRL 837926, and NYRL 821741, addressed to your client are hereby revoked effective with the date of this letter. If, after review, your client disagrees with the legal basis for our decision, we invite it to submit any arguments it may have with respect to this matter. Any such submission should be received within 30 days of the date of this letter.

This revocation is not retroactive. However, NYRL 837926 and NYRL 821741 will not be valid for importations of the subject merchandise arriving in the United States after the date of this notice. We recognize that pending transactions may be adversely affected (i.e. merchandise previously ordered and arriving in the United States subsequent to this modification will be classified accordingly). If it can be shown that your client relied on NYRL 837926 and NYRL 821741 to its detriment, it may apply to this office for relief. However, your client should be aware that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

This does not mean that the merchandise imported by your client will be automatically classified as sleepwear. That merchandise will be classified as either underwear or sleepwear according to its condition at the time of importation.


John Durant, Director

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