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HQ 956492

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September 19, 1994

CLA-2 CO:R:C:T 956492 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.22.0000

District Director
U.S. Customs Service
6747 Engle Road
Middleburg Heig, Ohio 44130-7939

RE: Protest with Application for Further Review; Classification of women's pajamas consisting of a knit pullover top and woven long bottoms

Dear Sir:

This ruling is in response to a protest, timely filed, by Grunfeld Desiderio Lebowitz & Silverman, on behalf of their client, XXXXXXX X. X. XXXXXXX X XXXXXXX, Inc., against your issuance of a notice to redeliver certain merchandise entered as women's pajamas of man-made fibers under subheading 6208.22.0000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), requiring a category 651 visa. The notice to redeliver indicates your office's belief that the merchandise is properly classified as women's knit pajamas of cotton under subheading 6108.31.0010, HTSUSA, requiring a category 351 visa. Our decision on this matter follows.

FACTS:

The merchandise at issue is identified as style 10042/50008, a woman's two-piece pajama set consisting of a 100 percent cotton knit pullover top and a 100 percent polyester woven long pant bottom. The top features long sleeves with rolled back cuffs, a V-shaped neckline, a straight hemmed bottom with 5 1/2-inch side slits, and an oversized appearance. The submitted sample is a size small and extends past the hip area in length. The top also features woven polyester trim along the edges of the sleeve cuffs and as a trim about one inch from the edge of the neckline. The trim fabric matches the fabric used to make the long pants.

The long pants are made of 100 percent woven polyester satiny-type fabric. The fabric has a shiny quality. The garment
reaches from the waist to the ankles and features an elasticized self-fabric covered waist, straight hemmed pants bottoms, and a loose, roomy construction.

The pajamas were entered classified in subheading 6208.22.0000, HTSUSA, which provides for women's woven pajamas of man-made fibers. Merchandise classified therein is dutiable at 17 percent ad valorem and falls within textile category 651. A notice of redelivery was issued on July 22, 1993, based on your determination that the merchandise was properly classified as women's knit pajamas of cotton fibers in subheading 6108.31.0010, HTSUSA. Merchandise classified in that subheading is dutiable at 9 percent ad valorem and falls within textile category 351.

Your decision that the subject merchandise is properly classified in subheading 6108.31.0010, HTSUSA, and that a redelivery notice is proper is based upon Headquarters Memorandum 084118 and VBT-89-95, Visa and Quota Reporting Requirements for Sets Containing Textile Products.

In response to the notice of redelivery, counsel for the importer filed a protest with application for further review on September 8, 1993.

ISSUE:

Are the subject pajamas properly classified as women's knit cotton pajamas of heading 6108, HTSUSA, or as women's woven man- made fiber pajamas of heading 6208, HTSUSA?

Are pajamas composite goods or goods put up in sets for retail sale for classification purposes?

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]."

Note 13, Section XI, states:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.

The language "unless the context otherwise requires" is of particular importance in this case. Pajamas are commonly known as either one-piece garments such as "sleepers" (sometimes known -3-
as Dr. Denton's) or two-piece garments consisting of a top and bottom. Thus, garments classified as pajamas generally consist of two garments, i.e., a top and a bottom treated as a unit and known as pajamas. See, HRL 088635 of May 24, 1991 and HRL 089367 of July 31, 1991. The tariff specifically provides for pajamas by name in the various provisions for men's and women's knit and woven garments, i.e., in headings 6107, 6207, 6108, and 6208, HTSUSA. Thus, pajamas consisting of a top and bottom which together create a unit which is commonly and commercially known as pajamas fall within the exception to Note 13 created by the language "unless the context otherwise requires". Pajama components entered together are therefore classified together under the appropriate pajama provision.

Women's pajamas are classified in either heading 6108, HTSUSA, or heading 6208, HTSUSA, depending on whether the pajamas are classified as knit or woven. In this case, the pajamas at issue are both, i.e., the top is knit, the bottom is woven. Thus, following GRI 3(a), headings 6108, HTSUSA, and 6208, HTSUSA, are equally specific and we must look to GRI 3(b).

GRI 3(b) provides:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Some confusion appears to exist as to whether pajamas are goods put up in sets for retail sale for classification purposes or considered composite goods. Your office has taken the view that the garments at issue are a set; the importer's counsel did not address the issue. While the determination of whether pajamas are composite goods or a set does not impact its ultimate tariff classification, it does affect visa/quota treatment of the garments.

The Explanatory Notes to the Harmonized Commodity Description and Coding System define "composite goods" and "goods put up in sets for retail sale" as follows:

For the purposes of this Rule [GRI 3], composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. [underline added]. -4-

For the purposes of this Rule [GRI 3], the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. * * *;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The historical treatment of pajamas, while not determinative, is helpful to consider. Historically under the previous tariffs, pajamas (tops and bottoms) were classified as a unit based upon the doctrine of entireties. The doctrine of entireties no longer exists for garments under the HTSUSA due to Note 13, Section XI, which requires separate classification of garments. However, the reasons enumerated above for consideration of pajamas as composites mirror the reasons given by the court in Miniature Fashions, Inc. v. United States, 54 CCPA 11, C.D. 2429 (1966), in which "cabana sets" consisting of matching shirts and shorts were determined to form entireties and thus were classifiable as articles of clothing not specifically provided for and not as individual shirts and shorts. In its decision, the court stated:

Classification is determined by the condition of the articles at the time of importation. United States v. Schoverling, supra. Viewed at that time, the evidence shows that they [the shirts and shorts] were designed as a unit, matched as to color, print and fabric, imported as a unit and pinned together, invoiced as a unit, and sold as a unit both in wholesale and retail channels. When the parts of the merchandise are separated and either part is returned for credit, or when both parts are returned for credit, the parts of the unit are either given to charity or placed in the waste basket. Thus, there appears to be no commercial value of the separate articles comprising the unit except as they are joined as a unit. Miniature Fashions, 54 CCPA 11, 17. [emphasis added].

Based on the definition of composite goods cited above, the common meaning of pajamas and the historical classification treatment of pajamas, this office views pajamas as composite goods. The pajama components that make up the pajamas at issue are adapted to each other and are mutually complementary as required by the definition of composite goods. We base this view on the following: -5-

1. The top and bottom are designed to be worn together;

2. The top and bottom are of complementary colors;

3. The top features trim which is of the same fabric as the bottom;

4. The top and bottom are imported and sold together as a unit.

While these features are generally also found in sets, in addition, the pajamas meet the third requirement of the definition of composite goods in that they form a whole (pajamas) which would not normally be offered for sale in separate parts. Normally, pajamas are sold as a top and bottom unit. We note that the sale of sleepwear separates (tops and bottoms) has emerged in the fashion retail market and appears to be a growing trend. However, there is no evidence in this case that the pajama components at issue here are ever treated as separates or have any separate commercial value. Based on the file before us, it is apparent that these components are treated as a unit from importation to sale and that unit which they create by being put together is pajamas.

The reason this office does believe these garments meet the definition of "goods put up in sets for retail sale" is because, in our view, they fail the first requirement. We do not view the two components, the top and bottom, as two different articles which are, prima facie, classifiable in different headings. Instead, as discussed above, we view the top and bottom as uniting to create a distinct article of commerce, i.e., pajamas, which are classifiable, eo nomine, in headings 6108, HTSUSA, or 6208, HTSUSA, depending on whether the pajamas are classified as knit or woven garments.

Because the pajamas at issue consist of a knit top and woven bottom, Customs must determine which component imparts the essential character to the composite good. Your office, in agreement with the national import specialists for women's pajamas, determined that the knit top component imparted the essential character and thus the pajamas are classifiable in heading 6108, HTSUSA. This determination was made by utilizing Headquarters Memorandum 084118 of April 13, 1989. That memorandum was drafted and distributed in order to minimize difficulties in determining which component of a garment imparts the essential character when such determinations must be made. The memorandum addressed situations involving upper and lower body garments and full body garments. Your office determined that the top component imparted the essential character based on the language in the memorandum which directs that for full body garments it is the upper portion of the garment which determines -6-
classification unless one of four factors is present. While we understand the reason your office applied this memorandum in the instant case, the memorandum was never intended to cover situations such as this one, i.e., it was not intended to cover situations involving more than one garment.

In determining which component imparts the essential character in this case, we must keep in mind the definition of pajamas. Counsel for the importer has argued that the man-made fiber bottoms impart the essential character here because the bottoms are made of a shiny satiny fabric which catches the eye as opposed to the flat knit fabric of the top. As stated above, your office chose the cotton knit top component. In order to be pajamas, there must be a top garment and a bottom garment. Without either garment, the pajamas do not exist. Therefore, this office believes each component is equally important to the creation of the whole, i.e., the pajamas. As each is equally essential, classification must be based upon GRI 3(c) which requires classification under the heading which occurs last in numerical order of the headings which merit equal consideration. As the pajamas may be classified under headings 6108, HTSUSA, based upon the knit cotton top, or 6208, HTSUSA, based upon the woven man-made fiber bottoms, and heading 6208, HTSUSA, appears last in numerical order, that is the heading under which the pajamas are classified.

HOLDING:

The pajamas at issue, style 10042/50008 are classified in subheading 6208.22.0000, HTSUSA, as women's woven pajamas of man- made fibers. The pajamas are dutiable at 17 percent ad valorem and, as composite goods, require a visa for textile category 651.

The protest should be granted in full and a copy of this decision should be attached to the Customs Form 19 which is returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty  -7-
days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

• Tariff No.: 6108.31.00 - Women's or girls' nightdresses and pajamas, knitted or crocheted, of cotton
• Tariff No.: 6208.22.00 - Women's or girls' nightdresses and pajamas, not knitted or crocheted, of man-made fibers