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HQ 952326

January 6, 1993

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


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.


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.

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.


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


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.

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:

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.]

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.


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.

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.


John Durant, Director
Commercial Rulings Division

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