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HQ 088564


FEBRUARY 28, 1991

CLA-2 CO:R:C:T 088564 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.21.0020

Ms. Julie White
Import Office
Nordstrom, Inc.
1321 Second Avenue
Seattle, Washington 98101

RE: Classification of a Two-Piece Garment Set; Pajamas vs. Thermal Underwear

Dear Ms. White:

This is in reply to your request of December 26, 1990, addressed to our office in Seattle, concerning the classification
of a two-piece garment set produced in Greece. Our ruling on the matter follows.

FACTS:

Although seven sample sets of garments were submitted with this ruling request, only one sample, Style 820, was forwarded to this office and that style is not listed as one of those submitted.
We assume that Style 820 is representative of the submitted sets.

Style 820 is a set of two garments of identical fine knit fabric--a crew neck pullover with long sleeves, rib knit cuffs and neckband, and a straight hemmed bottom; and ankle-length pants with an elasticized waist and rib knit cuffs. The pants do not have a fly front. The white fabric forming the garment has been printed with a continuous pattern of yellow school buses, green crayons, red stop signs with blue borders, and various colored stars. The garments are labeled to be size 6 and do not appear to be identifiable as either boys' garments or as girls' garments. The merchandise does not meet federal fire retardant requirements for sleepwear and the label in each garment specifically states, " THIS
GARMENT IS UNDERWEAR NOT INTENDED FOR SLEEPWEAR". Numerous copies of purchase orders were submitted together with advertising and order blanks to show that Nordstrom's ordered and sold the subject merchandise as "underwear". Also submitted was a statement from an official of Nordstrom's that the merchandise would be sold as underwear.

ISSUE:

The issue presented is whether the sample set of garments are classifiable as pajamas or as underwear.

LAW AND ANALYSIS:

We have received reports from two of our National Import Specialists (our commodity experts). One believes that the subject merchandise should be classified as underwear and the other believes that it is pajamas. They are both in agreement that the garments in question are multipurpose apparel capable of use as underwear, nightwear, and play wear.

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

GRI 2 is not applicable in this situation.

GRI 3(a) requires that where two or more headings describe the merchandise, the more specific will prevail; or if two or more headings each refer to part only of the materials in the goods, then classification will be by GRI 3(b). GRI 3(b) is also not pertinent to this merchandise. In the event that the applicable headings are equally specific, then the goods are classifiable according to GRI 3(c) under the provision which occurs last in numerical order among those provisions being considered.

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 those 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 order to determine the principal use of merchandise, Customs will usually look to how that merchandise is viewed in the commercial arena. HRL 088192, February 20,1991. If a garment is one of a class of apparel that is bought and sold at the wholesale level, and advertised and sold at the retail level for a specific purpose, then that is fairly good evidence of principal use (that use which exceeds each other use).

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.

Normally the submission of purchase orders and evidence of how certain merchandise is advertised and sold is sufficient for Customs to determine the commercial identity of a particular garment. However, in this instance, numerous advertisements were submitted showing similar type garments and most indicated that they were sold as pajamas.

One advertisement submitted in support of the merchandise being underwear came from the J.C. Penney Fall & Winter Catalog, 1988, at page 666. The merchandise appears from the description to be made from a different fabric ("Tiny airpockets (sic) help retain body heat.") and appears from the picture to be tighter fitting than the instant sample. We note that the garments advertised as pajamas in the 1990 J.C. Penney Fall & Winter Catalog, at pages 620 and 621, more closely resemble the sample in fabric construction and appearance than those pictured in the 1988 catalog.

In addition, the article contained in Kids Fashions, cited above, also described how a large children's clothier "finds that his customers are buying off the play wear racks in order to get 100 percent cotton sleeping attire for their kids." This evidence is not normally considered in determining chief use. However, here we have garments that are, by their nature, susceptible to more than one use. In such a situation, evidence showing that when these garments are sold as underwear or play wear they will be purchased with the intent of using them as sleepwear is pertinent and must be considered, particularly since there is no evidence that when the garments are sold as sleepwear they are purchased for use as underwear or play wear.

Considering all the advertisements, purchase orders, our own experience in the area of children's sleepwear, and the samples themselves, we are convinced that regardless of the disclaimer contained on the labels, the samples belong to a class of goods which are principally used as sleepwear (pajamas).

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 submitted sample is not identifiable as being intended for wear by either sex. Therefore , these garments are classifiable under the provisions for girls' apparel.

HOLDING:

Garments represented by the submitted samples are classifiable under the provision for girls knit cotton pajamas, in subheading 6108.21.0020, HTSUSA. As a product of Greece, the merchandise is dutiable at the rate of 8.1 percent ad valorem.

Sincerely,

John Durant, Director

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