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HQ 952381

January 7, 1993

CLA-2 CO:R:C:T 952381 SK


Mr. Thomas R. Hertwig
Leisure Sports
2467 East 57th Street
Los Angeles, CA 90058

RE: Reconsideration of HRL 952285 (8/10/92); classification of garments sized 24 months and 2T (2 Toddler); children's wear industry recognizes infants' and toddlers' clothing as two distinct product lines with distinct markets; authority of Consumer Product Safety Commission not controlling for Customs.

Dear Mr. Hertwig:

On August 10, 1992, this office issued you Headquarters Ruling Letter (HRL) 952285, which delineated Customs' position on the classification of garments labeled 24 months and 2T (2 Toddler). Upon further review, we affirm our position in that ruling and our analysis follows.

In your submission of August 17, 1992, you provide language from a Consumer Product Safety Commission (CPSC) pamphlet issued to the children's wear industry which reads, "there are no situations where the Commission staff would consider a size 2 different from a size 24 months." This statement does not mandate that the two types of articles be classified similarly. Rather, it merely states that for the CPSC's purposes, their staff need not distinguish between a size 24 months and a size 2T so long as their requisite regulatory standards have been met. The CPSC is a federal agency charged with a mandate different from that of Customs. Accordingly, the "situations" with which the CPSC are concerned are not necessarily similar to those confronting Customs. The CPSC is concerned with product safety; this office is concerned with creating a uniform practice in the classification of articles so that the trade has clear and consistent guidelines to follow when importing goods into the United States. In arriving at classification determinations, Customs' criteria include not only the physical characteristics
of the merchandise in question, but also extrinsic evidence illustrative of how a particular article is treated in the trade and commerce of the United States, (i.e., how a garment is marketed, advertised, displayed, and what the consumers' expectations are when purchasing an article). Accordingly, Customs' concerns and the CPSC's are not always similar. For their purposes of making safety determinations, children's garments labeled 24 months and 2T may be identical. However for Customs' purposes, these two types of garments are distinct and classifiable as such.

We do not necessarily disagree with the CPSC's statement that they do not consider a size 24 months different from a size 2T. Examination of how leaders in the children's clothing industry treat these two size designations reveals that, in some instances, a size 24 months and a size 2T both provide for children of the same height and weight. For example, "Playskool's" size chart states that a size 24 months and a size 2T both fit children 33 - 35 1/2 centimeters in length, weighing between 24 1/2 and 28 pounds. "Schwab" also delineates a size 24 months and a size 2T as fitting children who are 33 - 35 1/2 centimeters tall, weighing between 25 and 28 pounds. The fact that these specifications are the same, and yet one is designated an infant size and one a toddler size, indicates that the children's wear industry recognizes these types of garments as totally different products, with two distinct markets. Their similarity is only that at some point in the sizing spectrum of each type of garment, their sizes coincide. We stress that this does not mean that the articles are the same for classification purposes under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

In the second edition of Childrenswear Design, by Hilde Jaffe and Rosa Rosa, two professors at the Fashion Institute of Technology actively engaged in research regarding sizing for children's wear, infants' wear and toddlers' wear are described in detail and the different characteristics and purposes of the two products are set forth. Infants' wear tends to be stretchier so that it will fit for a longer period of time and allow greater freedom of movement. It is an essential safety factor that all small decorative details and buttons be either eliminated entirely or securely fastened to infants' garments. Toddlers' wear becomes more protective in nature and they tend to be easy to pull on and off so children can start dressing themselves. It is also in the toddler stage that girls' wear begins to differ from boys' wear. It is clear that infants' wear and toddlers' wear are two distinct types of clothing. The fact that the largest infants' sizes and the smallest toddlers' sizes may overlap is not enough to warrant identical classifications when the industry does not recognize these garments as identical. To reach a contrary conclusion, and hold that all garments with the
same size specifications are classifiable in an identical manner, would result in arbitrary classifications and confusion in the industry. If a garment is sized so that it realistically reflects the normal ages of the intended wearers, and the garment is either labeled or marketed in a manner consistent with that size (i.e., as either infants' wear or toddlers' wear), it will be classified as such.

We reiterate our holding in HRL 952285, that classification is not always based on written law. Classification may also be based, as mentioned supra, on criteria such as physical attributes, industry treatment, marketing, advertising, consumer expectations, etc... . Customs must not only classify accurately, but we are charged with creating a uniform practice which sets a precedent for the industry as to how certain articles will be treated for importation purposes. In implementing these criteria, Customs has consistently treated garments sized 24 months and those sized 2T as different for classification purposes.

The CPSC does not impose a controlling standard on Customs, nor is it an agency which specializes in classifying garments. Although we recognize that, where possible, garments should be treated uniformly by the various government agencies, there may be instances where the roles of two agencies are so diverse that identical treatment is impossible. In the instant case, the CPSC may ignore the distinction between garments sized 24 months and those sized 2T because both are subject to similar regulatory restraints. Customs, however, must acknowledge that these types of garments are regarded as distinct in the children's wear industry and classify accordingly.

Again, we regret any difficulties you have encountered with regard to the entry of goods at the port of Los Angeles but, as consistent with industry standards, we affirm our practice of treating garments sized 24 months and those sized 2T as distinct types of garments.

HRL 952285 is affirmed.


John Durant, Director

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