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HQ 951206

September 3, 1992

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


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.


John Durant, Director
Commercial Rulings Division

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