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HQ 956755




November 10, 1994

CLA-2 CO:R:C:T 956755 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.21.0010, 6208.21.0020, 6208.91.3010, 6212.10.2010

James Marino, Esq.
Neville, Peterson & Williams
80 Broad Street
Suite 3400
New York, New York 10004

RE: Classification of certain sleepwear separates; consolidation of four ruling requests; mix and match sleepwear garments

Dear Mr. Marino:

This ruling is in response to your requests of June 1994, on behalf of your client, J. Crew Group, Inc., seeking the classification of certain women's garments submitted to be sleepwear. For purposes of simplification, we have consolidated your four requests in this ruling. Samples were received by this office. You have requested the withdrawal of four garments from classification consideration on the basis that J. Crew is not the importer of record for these goods and thus does not require rulings on their classification.

FACTS:

Nineteen garments originally were at issue. Customs is allowing withdrawal of four styles as requested. We will not address the classification for styles 42361, 42331, 42351, and 42341 which were part of your ruling request submitted by letter of June 22, 1994. The remaining fifteen garments are claimed to be women's sleepwear garments with classification sought in heading 6208, HTSUSA, as women's nightdresses, pajamas, and other sleepwear. It is claimed the garments will be marketed with other garments as a line of sleepwear for the 1994 fall season. No advertising material was submitted and when sought, Customs was informed none was available at this time. Specification sheets to show that the styles are intended to be sold as a single line and as sleepwear were submitted. The garments will be sized as women's small, medium and large. The majority of the garments are designed to have a loose, comfortable fit.

The first four styles described below are constructed from 100 percent cotton yarn dyed tartan plaid flannel woven fabric. The garments will be manufactured in Portugal.

Style 81181--identified as a pajama top. The garment has long sleeves hemmed at the wrist opening; a full front opening secured by four buttons (right over left closure); a shirt collar; and, a straight, hemmed bottom. It is somewhat oversized. The garment is to be marketed and sold with matching bottoms, style 81201.

Style 81201--identified as a tartan pajama pant. The garment is a pair of long pants with a simple drawstring waist and two side seam pockets. It will be marketed and sold with style 81181 (pajama top).

Style 28961--identified as a pullover nightshirt. The garment is a pullover with a round neckline featuring a drawstring tie at the neck and a six-inch front opening from the neckline. The garment has long sleeves with one-inch cuffs with single button closures, no pockets, a straight hemmed bottom, side slits and an overall length of 36 inches (size medium). The garment is generously cut in an oversized fashion.

Style 5174--identified as a bold tartan nightshirt. The garment is a pullover featuring a partial front opening with a four-button closure (right over left), a slightly U-shaped neckline, a shirttail style hemmed bottom, no pockets, long sleeves hemmed at the wrist (no cuffs), and an overall length of 36 inches (size small). The garment is generously cut in an oversized fashion.

The next sample will be constructed of 100 percent cotton yarn dyed flannel woven fabric. The garment will be manufactured in Hong Kong and/or Portugal.

Style 31601--identified as a 100 percent cotton tartan flannel pajama bottom short. The garment has a self-fabric covered 3/4-inch elasticized waistband. It has a basic shorts design and has no fly and no pockets. It will be marketed with style 81181, pajama top.

The next five samples will be made of 100 percent cotton woven flannel fabric. The garments will be manufactured in Portugal.

Style 28951--identified as a 100 percent cotton woven yarn- dyed plaid flannel pajama top. The garment has long sleeves which are hemmed at the wrist (no cuffs), a notched collar, -3-
a full front opening secured by four buttons (right over left closure), and a straight hemmed bottom. The garment has an oversized appearance.

Style 4044--identified as a royal blue flannel 100 percent cotton pajama top. The garment has long sleeves which are hemmed at the wrist (no cuffs), a shirt style collar, a partial front opening secured by five buttons (right over left closure), two breast pockets, five-inch side slits, and a straight hemmed bottom. The garment has an oversized appearance and features yellow contrasting stitching at the seams. The garment will be marketed with style 2014.

Style 2014--identified as a royal blue flannel pajama bottom. The garment is a pair of long pants with an elasticized tunnel waistband with a drawstring. The garment has two rear patch pockets, a wide leg design, and yellow contrasting stitching at the seams. The garment will be marketed with style 4044.

Style 2024--identified as a royal blue flannel pajama bottom short. The garment is a pair of shorts with an elasticized waistband and two rear patch pockets. The garment is designed to be somewhat oversized. It features yellow contrasting stitching at the seams and four rows of yellow contrasting stitching at the hem of the legs. It will be marketed with style 1984, pajama top.

Style 2034--identified as a pajama romper. The sample is royal blue flannel. Customs considers this garment to be properly identified as a jumpsuit as the pants portion of the garment reaches to the ankles. Rompers are similar garments, however, they are above the knee in length. The one-piece garment extends from the neck to the ankles. It has long hemmed sleeves (no cuffs), a seamed high waistline, two breast pockets, a shirt collar, and a front opening secured by six buttons (right over left closure). The garment is designed for a loose fit and features yellow contrasting stitching at the seams.

The next five samples are made of 100 percent cotton yarn- dyed flannel woven fabric, except style 24791 which is a solid colored flannel. All the garments will be manufactured in Portugal.

Style 81211--identified as a tartan flannel 100 percent cotton draw string short. The garment is a pair of shorts with a 3/4-inch elasticized waistband with a drawstring. The shorts have two side seam pockets and hemmed leg bottoms. The garment is designed for a loose fit and will be marketed with style 9924. -4-

Style 9924--identified as a tartan flannel 100 percent cotton cropped pajama top. The garment has long hemmed sleeves (no cuffs), a full front opening secured by five buttons (right over left closure), a shirt collar, a left breast pocket, and a straight hemmed bottom. The garment is designed for a loose fit and will be marketed with style 81211.

Style 29111--identified as a tartan flannel draw string waist romper. Customs considers this garment a jumpsuit. The garment extends from the neck to the ankles and has long hemmed sleeves (no cuffs), an elasticized drawstring waist, two side seam pockets, a round neckline (no collar), and a front opening secured by six buttons (right over left closure).

Style 24791 is an underwire brassiere made with 100 percent cotton flannel woven fabric. The garment features adjustable straps and an adjustable back closure (three sets of double hook and eye closures). The submitted sample is red flannel with black capping along the top of the cups and a small black ribbon bow in the center front. The brassiere is coordinated with style 28071 (panty).

Style 28071 is a 100 percent cotton tartan flannel panty. The panty has an elasticized waist, elasticized leg openings, and a double-ply crotch.

ISSUE:

How are the submitted garments classified?

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]."

It is submitted that these garments are women's garments. Note 8, Chapter 62, states:

Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

Garments which cannot be identified as either men's or boys' or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.

The submitted garments with front closures have closures that are right over left, thus per Note 8 above, these garments are women's. As to the garments without front closures, we believe the cut of the garments sufficiently indicate that the garments are designed for women.

Heading 6208, HTSUSA, provides for, among other things, women's or girls' nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles. The Harmonized Commodity Description and Coding System Explanatory Notes describe the scope of heading 6208, in relevant part, as follows:

The heading also includes nightdresses, pyjamas, negliges, bathrobes (including beachrobes), dressing gowns and similar articles for women or girls' (garments usually worn indoors).

The Explanatory Notes are not legally binding, but do represent the official interpretation of the Harmonized System at the international level.

In determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two decisions of the Court of International Trade which are often cited when discussing sleepwear. In Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986) the Court of International Trade dealt with the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster's Third New International Dictionary's which defined "nightclothes" as "garments to be worn to bed." In Mast, the court determined that the garment at issue therein was designed, manufactured, and used as nightwear and therefore was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled the garments at issue therein were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear.

In past rulings, Customs has stated that the crucial factor in the classification of a garment is the garment itself. As the court pointed out in Mast, "the merchandise itself may be strong evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually -6-
identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, Slip-Op. 92-80. We have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outerwear. See, HRL 955341 of May 12, 1994 and rulings cited therein; HRL 952105 of July 1992; HRL 085672 of October 29, 1989; and HRL 955088 of December 14, 1993. With these points in mind, Customs has reviewed your claim that these garments are classifiable as sleepwear.

Our decision on the classification of these garments is based largely on the garments themselves, i.e., their fabrication and design. The only support for classification as sleepwear presented to us beyond the claim of sleepwear and the garments themselves were the specification sheets. While not valueless, the specification sheets are not highly persuasive by themselves.

Mary Brooks Picken's The Fashion Dictionary, (1957), at page 257, defines nightshirt as a "tailored nightgown". The court in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F. 2d 1144 (1986), citing Webster's Third New International Dictionary, (1981), at 1528, found the definition of "nightshirt" was "a nightgown resembling a shirt." Styles 28961 and 5174 are clearly nightshirts and as such are classifiable under the provision for nightdresses and pajamas within heading 6208, HTSUSA.

Styles 81181, 9924, 4044 and 28951 are identified as pajama tops. With the exception of style 28951, you have indicated that these garments are marketed with matching style bottoms. As to style 28951, based upon an examination of the garment, Customs accepts that this is a pajama top. Styles 81201, 81211, 2014, 2024, 42341 and 31601 are identified as pajama bottoms. You indicate in your submission that styles 81201, 81211, 2014, 2024 and 31601 are marketed with matching style tops. Based upon an examination of these garments, Customs agrees that they are designed, marketed and sold as sleepwear and will be principally used as such. The National Import Specialist who specializes in women's woven sleepwear believes the generous cut, wide leg designs, fabrication, etc., are indicative of sleepwear garments and this office agrees.

In your submission, you indicate that the pajama top and pajama bottom styles listed above will be presented as sleepwear -7-
separates in order to allow the purchaser to mix and match tops and bottoms. Customs has issued recent rulings on similar mix and match merchandise. In HRL 956202 of September 29, 1994, and HRL 956239 of October 4, 1994, Customs looked at the historical treatment of pajamas as a unit and the classification of mix and match pajama separates based upon their condition as imported. In that regard, Customs stated in HRL 956202:

Based upon their condition at the time of importation, shipments of equal numbers of matching sleepwear (pajama) tops and sleepwear (pajama) bottoms will be viewed by Customs as shipments of composite goods that form a whole which is not normally sold as separate parts and is commercially known as pajamas. Thus, garments in such shipments will be classified as pajamas of heading 6208, HTSUSA. Please note, that by the term "matching", Customs is making reference not only to design, style and coloring, but also to size. In regard to sizing, provided the bulk of the shipment consists of garments (tops and bottoms) which are matched as to size, a slight variation in sizing between a limited number of tops and bottoms will not preclude classification as pajamas.

If imported separately (shipments of only tops or only bottoms) or if imported as extra components without a matching top or bottom in a shipment, sleepwear separates cannot be classified as pajamas because they fail to meet the common and commercially understood definition of pajamas in their condition as imported. See, HRL 956202, HRL 956239, 088635 of May 24, 1991, and HRL 089367 of July 31, 1991.

Sleepwear separates, i.e., pajama tops and pajama bottoms imported as individual articles, are classifiable in heading 6208, HTSUSA, based upon the rule of statutory construction known as ejusdem generis. Ejusdem generis means "of the same kind, class, or nature." Provided the sleepwear separates at issue possess the same characteristics or purposes as the named garments in heading 6208, HTSUSA, they may be classified therein as similar garments. See, HRL 956202.

Heading 6208, HTSUSA, specifically provides for women's and girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles. All of the articles named in heading 6208, HTSUSA, may be characterized as "intimate apparel". They are garments which are recognized as either underwear (the singlets and other undershirts, slips, petticoats, briefs and panties), sleepwear (the nightdresses, pajamas and negligees), or garments normally worn indoors in the presence of family or close friends (the negligees, bathrobes and dressing gowns). The -8-
explanatory note cited earlier describes the coverage of heading 6208 as including women's or girls' underclothing and, after naming the last five exemplars, "garments usually worn indoors".

Customs is of the opinion that styles 81181, 9924, 4044, 28951, 81201, 81211, 2014, 2024, and 31601, as individual articles, clearly share characteristics and purpose with the exemplars to heading 6208, HTSUSA. We believe these garments may be characterized as intimate apparel. They are designed, marketed and sold as sleepwear garments and as such they would not normally be worn outside the home and, when worn, would be worn only in the presence of family or close friends. Based upon an examination of these garments, when imported together (tops with matching bottoms), instead of separately, these garments would be recognized and classified as sleepwear pajamas. As separates, they remain sleepwear garments, but not pajamas.

Styles 29111 and 2034 are flannel jumpsuits. The National Import Specialist agrees with your claim these garments are sleepwear. The fabric and roominess of the design tend to support the claim of sleepwear. We agree. In addition, the marketing of the garments as sleepwear, as part of a sleepwear line, gives support to the claim the garments are sleepwear and will be principally used as such. As sleepwear, styles 29111 and 2034 are classifiable within the provision for nightdresses and pajamas in heading 6208, HTSUSA. Pajamas includes not only commonly thought of traditional two-piece garment, but also one- piece garments which cover the torso. See, HRL 088635 and HRL 089367.

As to style 28071, the flannel panty, and style 24791, the flannel underwire brassiere, Customs does not agree that these garments are sleepwear. However, we also believe we need not argue their use in order to determine their classification.

Brassieres are provided for eo nomine in heading 6212, HTSUSA. "[A]n eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article." Nootka Packing Co. et.al. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935). The Explanatory Notes to the Harmonized Commodity and Coding System, the official interpretation of the tariff at the international level, provide in part that heading 6212 includes, inter alia, "Brassieres of all kinds." There is no use distinction or limitation for classification of brassieres in heading 6212. Therefore, style 24791, a brassiere, is classified in heading 6212.

Likewise, "panties" are provided for, eo nomine, in heading 6208, HTSUSA. The flannel panty, style 28071, is thus classified in heading 6208, HTSUSA. It is not classifiable in the subheadings for slips and petticoats or, nightdresses and pajamas, as it is not one of these garments. The remaining subheading is "other". This is the provision within which the flannel panty is classified.

HOLDING:

Styles 28961 and 5174 are nightshirts classified in the provision for woven nightdresses and pajamas, of cotton, with two or more colors in the warp and/or the filling, in subheading 6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5 percent ad valorem.

Style 29111 is a sleepwear jumpsuit classified in the provision for woven nightdresses and pajamas, of cotton, with two or more colors in the warp and/or the filling, in subheading 6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5 percent ad valorem.

Style 2034 is a sleepwear jumpsuit classified in the provision for woven nightdresses and pajamas, of cotton, other, in subheading 6208.21.0020, HTSUSA, textile category 351, dutiable at 9.5 percent ad valorem.

Style 28071, a flannel panty, is classified in the provision for other woven cotton garments, in subheading 6208.91.3010, HTSUSA, textile category 352, dutiable at 11.9 percent ad valorem.

Style 24791, a flannel brassiere, is classified as a cotton brassiere, not containing lace, net or embroidery, in subheading 6212.10.2010, HTSUSA, textile category 349, dutiable at 18 percent ad valorem.

Styles 81181, 9924, 28951, 81201, 81211, and 31601, when imported in shipments containing matching equal numbers of tops and bottoms, are classified as women's cotton pajamas with two or more colors in the warp and/or filling in subheading 6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5 percent ad valorem. Styles 4044, 2014, and 2024, when imported in shipments containing matching equal numbers of tops and bottoms, are classified as women's other cotton pajamas in subheading 6208.21.0020, HTSUSA, textile category 351, dutiable at 9.5 percent ad valorem.

When imported separately, or when imported without a matching component, styles 81181, 9924, 28951, 81201, 81211, 31601, 4044, 2014, and 2024 are classifiable, ejusdem generis, as -10-
similar articles in subheading 6208.91.3010, HTSUSA. Garments classifiable in this subheading are subject to a rate of duty of 11.9 percent ad valorem and fall within textile category 352.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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