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HQ 081272


August 16, 1988

CLA-2 CO:R:C:G 081272 SM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6206.30.3010; 6204.62.4055; 6204.62.4020

Donna L. Shira, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. 80 Broad Street
New York, NY 10004

RE: Tariff classification of certain women's shirts and pants

Dear Ms. Shira:

Your letter of October 28, 1987, on behalf of Carter Hawley Hale Stores, requests a tariff classification ruling for three styles of women's garments to be imported from India.

FACTS:

Samples of all three styles were submitted. All are of a 100 percent cotton woven fabric. Style C-1061 consists of two pieces. The top is a collarless shirt with a full-front six-button opening, short sleeves, a single patch pocket on the left side, a back yoke, and a slightly rounded shirttail. The trousers have an elasticized waist with a functional drawstring, a pocket in each side seam, and no closure. A band of fabric that matches the shirt is stitched around the lower edge of each leg. Style C-1060 is virtually identical except that it has a second pocket inside the patch pocket of the shirt, and shorts instead of trousers with no contrasting fabric at the lower edge. Style C-1062 is a shirt like that of Style C-1060 but longer, with a back length of approxi- mately 36 inches.

Your position is that all three styles should be classi- fied as pajamas and other nightwear. You state that the fol- lowing facts compel this classification: the garments are of 100 percent cotton; they have flat buttons; the elasticized waists of the pants have drawstrings that allow adjustment for a loose fit for sleeping and a snugger fit for lounging; the oversized fit makes the garments suitable for sleeping and lounging but inappropriate for outdoor wear; the garments were ordered by sleepwear/intimate apparel departments to be mar- keted as sleepwear, as evidenced by the proposed catalog in- serts.

ISSUE:

Whether the garments are classifiable as pajamas and other nightwear, and if not, how they are classified.

LAW AND ANALYSIS:

The Revised Textile Category Guidelines, C.I.E. 6/87, reflect the many past Customs Service decisions to classify as pajamas and other nightwear those garments worn to bed for sleeping. T.D. 87-118 reiterated the Service's position that nightwear is sleepwear and that garments advertised and sold as dresses, shirts, beach cover-ups, or other nonsleep arti- cles are not classifiable as nightwear. This position is con- sistent with the judgment in Mast Industries v. United States, 9 CIT 549 (1985), aff'd, 786 F. 2d 1144 (Fed. Cir. 1986), that nightclothes are garments to be worn to bed, and that the gar- ment in question, found to be designed, manufactured, market- ed, and used as nightwear, was so classifiable. It parallels the decision in Children's Hose, Inc. v. United States, 55 Cust. Ct. 6 (1965), in which the court held that underwear is garments of an intimate nature, not seen, not for public expo- sure, and that a garment partially visible when worn could not be classified as underwear. Neither sleepwear nor underwear is to be worn in public.

Many garments are clearly and undisputably nightwear; they generally do not come before Customs for rulings because there is no doubt as to their tariff classification. Diffi- culties arise when garments claimed to be nightwear resemble dresses, shirts, pants, or other garments intended to be worn not in the privacy of the bedroom but for public view. The more closely an importer's merchandise resembles these outer- wear garments in color, style, and fabric, the more difficulty he will have, obviously, in establishing for Customs officials that that merchandise is sleepwear.

The difficulty, moreover, is not merely that the styles themselves are ambiguous; the environment of sale is equally so. Examination of the trade press indicates that sleepwear/ intimate apparel departments of stores have sought to boost their sales by offering a variety of comfortable clothes, sometimes called "leisure wear," in addition to sleepwear and underwear. Visits to the stores themselves reveal that this is indeed the case. The Customs Service has even received letters from importers asking that their merchandise be clas- sified as "leisure wear," although the Tariff Schedules of the

United States contain no such provision. Thus, an importer's claim that his merchandise is sold in a sleepwear department cannot be conclusive of its classification. In many cases, garments sold in these departments are indistinguishable from those sold elsewhere.

In determining whether a particular garment is to be worn to bed for sleeping, Customs will consider the sample itself and whatever information the importer can supply about how the garment is to be marketed. We must also consider how the same or virtually the same article is advertised and sold by others.

With regard to the submitted samples, neither the gar- ments themselves nor the supporting materials persuade us that classification as pajamas and other nightwear is correct. The samples have the appearance of ordinary shirts, trousers, and shorts. The welt pockets in the side seams of the trousers and shorts have the finished look of outerwear garments. The fact that the garments are of cotton and have flat buttons in no way compels their classification as nightwear. Neither does the fact that they are somewhat oversized; this look is currently popular in a variety of garments. Many trousers and shorts have the elasticized drawstring waist feature and con- trasting fabric strips on the cuff area. The proposed catalog inserts purporting to show that the merchandise will be sold as sleepwear do not in fact show the styles in question.

HOLDING:

Style C-1062 and the tops of Styles C-1060 and C-1061 are classified under item 384.4608, TSUSA, textile category 341, as women's cotton blouses, not ornamented, not knit. The bottoms of Style C-1060 are classified under item 384.4724, TSUSA, textile category 348, as women's cotton shorts, not ornamented, not knit. The bottoms of Style C-1061 are classi- fied under item 384.4765, TSUSA, textile category 348, as women's cotton trousers, not ornamented, not knit.

The Harmonized Tariff Schedule of the United States (HTSUSA) is scheduled to replace the TSUSA. The HTSUSA pro- visions applicable to the above-described merchandise are the following. Style C-1062 and the tops of styles C-1060 and C- 1061 are classified under subheading 6206.30.3010, HTSUSA, textile category 341, a provision for women's cotton blouses, not knitted or crocheted. The bottoms of Style C-1060 are classified under subheading 6204.62.4055, HTSUSA, textile category 348, a provision for women's cotton shorts, not
knitted or crocheted. The bottoms of Style C-1061 are classified under subheading 6204.62.4020, HTSUSA, textile category 348, a provision for women's cotton trousers, not knitted or crocheted.

This classification represents the present position of the Customs Service under the proposed HTSUSA. If there are changes before enactment, this advice may not continue to be applicable.

Sincerely,

John Durant, Director
Commercial Rulings Division

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