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
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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
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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.
Sincerely,
John Durant, Director