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HQ 085672

October 29, 1989

CLA-2 CO:R:C:G 085672 DRR 844988

CATEGORY: CLASSIFICATION

TARIFF NO.: 6206.30.3010; 6204.62.4055; 6204.22.3060; 6204.22.3050

Robert T. Stack, Esq.
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, New York 10004

RE: Classification of women's clothing

Dear Mr. Stack:

This is in response to your letter dated July 14, 1989, on behalf of Dillard Department Stores, Inc. (Dillard's), requesting the classification of women's garments, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue, style 5203, consists of two pieces. The upper component is styled like a shirt. It has a full front opening with a placket secured by seven buttons, a pointed collar, with a collar band, short sleeves with turned-up cuffs, a single breast patch pocket, a double ply rear shoulder yoke and a rounded shirttail hemline. The other component is a pair of pull on short pants with an elasticized waist band. The garments are made of 100 percent woven cotton yarn dyed striped fabric and will be imported from India. Your letter indicates that you believe that the garments are classifiable as pajamas under subheading 6208.21.0010, HTSUSA.

ISSUE:

Whether the garments at issue are classifiable under subheading 6208.21.0010, HTSUSA, or subheading 6206.30.3010, HTSUSA, and subheading 6204.62.4055, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section and chapter notes.

Heading 6208, HTSUSA, provides for women's and girl's pajamas and similar articles. The Explanatory Notes, the official interpretation of the HTSUSA at the international level, state that the garments specified in Heading 6208 are usually worn indoors.

To assist in the classification of nightwear, Customs looks to the Textile Category Guidelines, C.I.E. 13/88. These Guidelines, revised in accordance with the HTSUSA, 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, which limited the St. Eve decision to the merchandise before the court, reiterated Customs' position that nightwear is sleepwear, and that garments advertised and sold as dresses, shirts, trousers, beachrobes, or other nonsleep articles are not classifiable as nightwear. This position is consistent with the judgment in Mast Industries, that nightclothes are garments to be worn to bed, and that the garment in question, found to be designed, manufactured, marketed, and used as nightwear, was so classifiable. We find no inconsistency in considering these same factors in classifying pajamas, nightdresses, and similar garments under the HTSUSA.

Garments that are clearly nightwear generally do not come before Customs for rulings because there is no doubt as to their tariff classification. Difficulties arise when garments claimed to be nightwear resemble dresses, shirts, trousers, or other garments intended to be worn, not in the privacy of the bedroom, but for public view. The more closely merchandise resembles outerwear garments in color, style, and fabric, the more difficult it is to establish that it is sleepwear.

Another difficulty arises where the environment of sale, in addition to the garment styles, is ambiguous. Examination of the trade press indicates that sleepwear/intimate apparel departments of stores have sought to increase sales by offering a variety of clothes in addition to sleepwear and underwear. Visits to the stores themselves reveal that this is indeed the case. Thus, an importer's claim that the merchandise is sold in a sleepwear department is not conclusive of its classification. In many cases, garments sold in these departments are indistinguishable from those sold elsewhere.

When goods are not clearly sleepwear, evidence of marketing in the United States as sleepwear is a factor in classification. 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 will be marketed and sold. We must also consider how the same or virtually the same article is advertised and sold by others. In some cases we receive samples of the same merchandise from different importers requesting different classifications. With regard to documentation in support of a claimed classification, letters of credit, purchase orders, contracts, confirmations, and other documentation incidental to the purchase of the merchandise cannot be regarded as conclusive. These documents can be self-serving and do not necessarily reflect how merchandise is advertised in the U.S. market. In the instant case, you have submitted purchase orders and a statement from a buyer for Dillard's. Your letter indicates that there is no advertising material available for these garments.

HOLDING:

The garments at issue, when imported separately, are classified as a shirt and shorts under subheading 6206.30.3010, HTSUSA, with a duty rate of 16.4 percent and subject to textile category 341, and subheading 6204.62.4055, HTSUSA, with a duty rate of 17.7 percent and subject to textile category 348. When imported together as a set, the garments are classified under subheading 6204.22.3060, HTSUSA, and subheading 6204.22.3050, HTSUSA, respectively.

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.

Due to the changeable nature of the statistical annotation 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.

Your sample is being returned to you, as requested.

Sincerely,

John Durant, Director

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See also:

• Tariff No.: 6204.22.30 - Women's or girls' ensembles, not knitted or crocheted, of cotton, other than judo, karate and other oriental martial arts uniforms
• Tariff No.: 6204.62.40 - Women's or girls' trousers, breeches and shorts, not knitted or crocheted, of cotton, nesoi
• Tariff No.: 6206.30.30 - Women's or girls' blouses and shirts, not knitted or crocheted, of cotton, nesoi
• Tariff No.: 6208.21.00 - Women's or girls' nightdresses and pajamas, not knitted or crocheted, of cotton