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?

-2-

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.

-3-

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