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HQ 089959

November, 18, 1991

CLA-2 CO:R:C:T 089959 PR


TARIFF NO.: 6108.31.0020

John E. Brady, President
Bill White, Inc.
343 South Glasgow Avenue
Inglewood, CA. 90301

RE: Classification of a Two-Piece Girls Set--Underwear vs. Sleepwear (Pajamas); Pajama Tops Are Not Shirts For Determination of Whether They Are For Boys or Girls

Dear Mr. Brady:

This is in reply to your letter of July 23, 1991, on behalf of Llama Imports, Inc., concerning the tariff classification of a two-piece girl's apparel set. Our ruling on the matter follows.


The submitted sample, style GBS #18, made in Korea, is a garment set, labeled size "2-3 YR.", which consists of a long sleeve pullover and long pants. Both are made of the same small green and pink hearts print on a soft knit cotton fabric. The pullover has a two button partial front opening which buttons left over right, sewn on rib knit cuffs, a hemmed bottom, and capping around the neck opening. The pants portion have an elasticized waist, sewn on rib knit cuffs, and a triangular inserted piece in the crotch area, the pointed end of which extends up to the rear almost to the waistband.

While it is stated that the garments are "manufactured to fit the body snugly and to allow the garment to be worn under outer garments", our examination of the merchandise indicates that the garments would be somewhat loose fitting--the pullover is not tapered and measures approximately 11 inches across the bottom (seam to seam) and 10-« inches across the chest (seam to seam) while the hip portion of the pants measures approximately 23 inches around and each thigh measures approximately 12 inches around. -2-


The issues presented are (1) whether the subject merchandise is classifiable as underwear or as pajamas, and (2) whether the garments are classifiable as boys' or girls' apparel.


Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes. It appears that GRI 1 governs the classification of the subject merchandise.

The subject merchandise has been examined by the Senior Compliance Officer in New York for the Consumer Product Safety Commission (CPSC) and determined to be within CPSC's standards for sleepwear. In Customs Headquarters Ruling Letter (HRL) 089790, dated July 3, 1991, this office stated:

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.

Since the samples have the general look and feel of children's sleepwear, we concur with the CPSC's determination regarding these garments.

The question remains whether the set is classifiable as boys' wear because of the front opening buttoning left over right, or as girls' apparel because of the print (small pink and green hearts).

Chapter 61, Note 8, HTSUSA, provides that articles "which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified under the headings covering women's or girls' garments."

The Harmonized Commodity Description and Coding System, Explanatory Notes, which are the official interpretation of the HTSUSA at the international level (for the 4 digit headings and the 6 digit subheadings), state that shirts (classifiable under Heading 6105, HTSUSA) with "a front opening on the neckline which fastens or overlaps left over right are considered to be shirts for men or boys" (at page 837). In a memorandum dated March 14, 1988, file 081679, addressed to the Area Director, New York Seaport, we took the position that the above language was applicable only to pullover shirts. The memorandum further stated:

Shirts with full front openings and all nonshirt garments will be classified according to their individual characteristics.

This office views pajama tops to be in the category of "nonshirt garments", and in our view, the pajamas are designed for wear by small girls. The small pink and green hearts printed on the garments make it unlikely that parents would dress boys in these pajamas. However, even if they did, at most that would make these garments unisex in nature and, therefore, classifiable under the provisions for girls' apparel.


The submitted sample set is classifiable under the provision for girls' knit cotton pajamas, in subheading 6108.31.0020, HTSUSA, with duty, as a product of Korea, at the rate of nine percent ad valorem. The designated textile and apparel category applicable to this merchandise is 351.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, 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 that 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 available for inspection at your local Customs office.


John Durant, Director

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