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HQ 955384


December 30, 1993

CLA-2 CO:R:C:T 955384 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6107.21.0020

Mr. Tommy Lai
Hong Kong Economic and Trade Office
1150 18th Street, N.W., Suite 475
Washington, D.C. 20036

RE: Classification of boys' knit apparel; pajamas v. underwear

Dear Mr. Lai:

This ruling is in response to your request of November 15, 1993, on behalf of Lifeguard Apparel Inc., regarding the classification of certain boys' knit apparel entered through the port of New York (air/seaport). Sample garments were received with your request, your reference HK 152/93.

FACTS:

The submitted garments consist of a knit pullover shirt and knit pants. Both garments are made of the same 60 percent cotton/40 percent polyester waffle knit fabric. The pullover has long sleeves with rub knit cuffs, a round neckline with rib knit fabric trim, and a hemmed straight bottom. The pull-on pants have an elasticized fabric covered waistband and rib knit cuffs at the ankles. The pants do not have a fly opening.

The garments at issue are sized for boys 4 to 16. The submitted samples are sized for boys 10/12 and feature all-over dinosaur patterns in vivid colors on a white background. Both garments contain labels which state "underwear not intended for use as sleepwear".

ISSUE:

Are the submitted garments classifiable as boys' pajamas or underwear of heading 6107, HTSUSA?

LAW AND ANALYSIS:

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 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 of February 28, 1991, 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.

In determining principal use, Customs will consider how a garment is viewed commercially, i.e., how it is marketed and advertised. No information has been submitted in this regard other than that the subject garments are imported and packaged for sale as sets. Additionally, each garment has a label indicating the garment is underwear not intended for use as sleepwear.

If the garments at issue are classifiable as pajamas, i.e., sleepwear, then they are subject to the requirements of 16 CFR Parts 1615 and 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. On January 13, 1993, the Consumer Products Safety Commission (CPSC) published notice in the Federal Register (58 FR 4078) of a stay of enforcement of the sleepwear requirements of 16 CFR Parts 1615 and 1616 against skin-tight or nearly skin-tight garments currently being used as sleepwear that are labeled and marketed as underwear.

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 considers all relevant information, including garment assessments provided by the CPSC. The National Import Specialist who reviewed this merchandise has informed this office that the CPSC was consulted regarding the garments at issue. Based upon an examination of the garments and utilizing the criteria contained in the CPSC publication cited above, the CPSC considered the garments to be sleepwear. 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.

As to the labels indicating that the garments are underwear, in HRL 088564 of February 28, 1991, Customs stated in regard to similar garments and labels:

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]. -4-

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."

The garments at issue are packaged and sold as a set, much like pajamas are. The pull-on pants at issue lack a feature normally associated with boys' underwear, i.e, a fly opening. The fabric and the colorful print of the garments are more suggestive, in our view, of pajamas than underwear. After examining the garments at issue and considering the CPSC assessment, this office believes that the garments at issue are properly classified as pajamas, regardless of the labelling.

HOLDING:

The submitted garments are classifiable as boys' cotton pajamas in subheading 6107.21.0020, HTSUSA, textile category 351, dutiable at 9.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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