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HQ 957479




March 10, 1995

CLA-2 CO:R:C:T 957479 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.99.3020

The GAP, Inc.
Two Harrison
San Francisco, CA 94105

RE: Classification of women's silk sleepwear boxers; 6208.99.3020, HTSUSA; HRL 956239 (10/4/94); sleepwear bottoms imported without matching top; not pajamas; similar articles; sleep shorts.

Dear Sir:

This is in response to your letter of November 15, 1994, in which you request a binding classification ruling for a pair of women's sleep bottoms, identified as style number 727439. A sample was submitted for Customs' examination.

FACTS:

Style 727439 is a women's boxer-styled sleep short made from woven 100 percent silk. The pull-on shorts feature a 7/8 inch tubular elasticized waistband with a drawstring, a functional button fly and faggoting-like trim around the legs. The garment is imported in sizes XS-L. The garment is part of the importer's intimate apparel line and is intended to be offered for sale separately to the consumer. The garment is to be worn as a sleep garment in conjunction with a pajama top or with a camisole.

ISSUE:

What is the proper classification of style 727439?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

We note that Headquarters Ruling Letter (HRL) 956239, issued to you on October 4, 1994, dealt with the classification of substantially identical merchandise. The women's boxer- style sleep bottom classified in HRL 956239, referenced style 727171, is the same in all material respects to the instant merchandise except that style 727171 was made from cotton and the leg openings were trimmed with lace rather than ornamental stitching. The analysis in that ruling applies in the instant case.

Heading 6208, HTSUSA, provides for, inter alia, women's or girls' nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles. The determinative issue is whether the subject sleep short is classifiable as a "pajama" within heading 6208, or as an article "similar to" sleepwear.

In HRL's 088635, dated May 24, 1991, and 089367, dated July 31, 1991, Customs addressed the issue of the meaning of the term "pajamas" for tariff classification purposes. It was determined that no support could be found for the proposition that the common meaning of the term pajamas included the individual components of a pajama imported alone. As style 727439 is imported alone without a matching top, and it is sold separately to the consumer, it cannot be deemed a pajama for tariff classification purposes.

Style 727439 will be classifiable in heading 6208, HTSUSA, as a "similar article" if it is considered ejusdem generis with the enumerated exemplars. In HRL 956239, this office determined that:

"... the articles named in heading 6208, HTSUSA, may be characterized as intimate apparel.' They are garments which are recognized as either underwear... sleepwear... or garments normally worn indoors in the presence of family or close friends. ... Customs believes that style 727171 (the sleep short) ... may be characterized as intimate apparel. [It is a garment] that would not be worn outside the home and, when worn, would be worn only in the presence of family or close friends... [it is] sold as sleepwear garments in the underwear or sleepwear section of the stores... Based upon an examination of these garments (style 727171), their fabric, styling and construction make it obvious that ... as separates they remain sleepwear garments, but not pajamas."

On the basis of the analysis set forth in HRL 956239, this office is of the opinion that style 727439 is a sleepwear garment, but not a pajama, inasmuch as the sleep short fails to meet the common and commercially understood definition of pajama in its condition as imported. Accordingly, style 727439 is classifiable in subheading 6208.99, HTSUSA, as a silk garment of the same class or kind of article as the exemplars listed in heading 6208, HTSUSA.

HOLDING:

Style 727439 is classifiable under subheading 6208.99.3020, HTSUSA, which provides for, inter alia, women's other garments of silk, dutiable at a rate of 6.9 percent ad valorem. The applicable textile quota category is 752.

The designated textile and apparel categories 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 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 updated weekly and is available for inspection at a local Customs office.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the 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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