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HQ 958385




October 26, 1995

CLA-2 R:C:T 958385 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.91.3010

Miguel Ruiz
Miami International Forwarders
P.O. Box 523730
Miami, FL. 33152-3730

RE: Classification of sleepwear top

Dear Mr. Ruiz:

This is in reply to your letter dated July 27, 1995, concerning the classification of a men's woven cotton flannel top under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination.

FACTS:

The subject garment, referenced style number 72009T, is a men's woven cotton flannel top made in Turkey, featuring a notched shirt type collar, a full frontal opening with button closures, hemmed long sleeves, a locker loop on the back panel with a "Tommy Hilfiger" label, and a chest pocket with an embroidered crest and a green buttonhole.

This garment will be sold in stores on racks that are especially designed for Tommy Hilfiger products in the sleepwear departments. The importer claims that this garment is sold to be worn only to bed and that the garment will be sold in stores as part of the sleepwear separates line. At this time there is no advertising material available. The top will be sold to the consumer with a hangtag which indicates TOMMY sleepwear HILFIGER.

The importer additionally requires information regarding whether the presence of the subject top with sleepwear shorts and pants would require their classification as a pajama set.

ISSUE:

What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in the order of their appearance.

In HQ 088635, dated May 24, 1991, and HQ 089367, dated July 31, 1991, Customs addressed the issue of the meaning of the term "pajamas" for tariff purposes. Those rulings cited various definitions of pajamas, including:

Essential Terms of Fashion: A Collection of Definitions, published by Fairchild, at 128, defines pajamas as, "one or two piece item of apparel originally designed for sleeping..."

The American Heritage Dictionary, Second College Edition, at 893, "A loose-fitting garment consisting of trousers and a jacket, worn for sleeping or lounging."

Webster's II New Riverside University Dictionary, (1984), at 845, "A loose-fitting garment having of (sic) trousers and a jacket, worn for sleeping or lounging."

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories (Guidelines), CIE 13/88, dated November 23, 1988, define pajamas as:

Pajamas are worn by both sexes and all ages. They consist of an upper part, pullover or coat style, with long, short, or no sleeves and a lower part, short, intermediate, or long-trouser like garments or any style panties. The lower part sometimes encloses the feet. Pajamas are sleepwear...

In both HQ 088635 and HQ 089367, Customs concluded that no support could be found for the proposition that the common meaning of the term pajamas included the individual components of a pajama set standing alone. Thus, pajama bottoms imported without their matching pajama tops are not classifiable as pajamas; the same holds true for the opposite case.

In reaching a decision on the classification of "pajamas" we examine how they will be imported. If garments are imported in shipments of tops or bottoms only, they cannot be classified as pajamas. However, if the garments are imported in shipments consisting of equal numbers of matchings tops and bottoms, a different issue presents itself. In HQ 956492, dated September 19, 1994, Customs discussed the rationale for classification of pajamas as composite goods:

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.

* * * 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.

As was stipulated in Donalds Ltd., v. United States, 32 Cust. Ct. 310, 314, C.D. 1619 (1954), classification based upon the doctrine of condition as imported is a basic tenet of tariff classification. As the court stated in Donalds:

* * * in determining the proper classification applied to imported articles, the actual nature of the article of commerce, or commercial entity, involved must be taken as the determinant.

Thus, based upon the condition at the time of importation, shipments of equal number of matching sleepwear shirts and sleepwear 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. Accordingly, garments in such shipments will be classified as pajamas. In using the term "matching" Customs makes reference to design, style, coloring and 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.

It thus follows that if the subject flannel top is imported separately, it cannot be classified as a pajama as it fails to meet the common and commercially understood definition of pajama, in its condition as imported. The top is classifiable in heading 6207, HTSUSA, as an article similar to the articles specifically named in the heading. In deciding if the sleepwear top imported as an individual garment is classifiable in heading 6207, HTSUSA, we refer to the rule of statutory construction known as ejusdem generis. In Van Dale Industries v. United States, Slip Op. 94-54, (decided April 1, 1994), discussing ejusdem generis, the court stated:

One rule of statutory construction is ejusdem generis, which means "of the same kind, class, or nature." Black's Law Dictionary 464 (5th ed. 1979). This rule applies "whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named. [United States v. Damrak Trading Co., Inc, 43 CCPA 77, 79, C.A.D. 611 (1956).] Under ejusdem generis, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Id. In other words, ejusdem generis requires that merchandise possess the particular characteristics or purposes that unite the specified exemplars in order to be classified under the general terms. See, Nissho-Iwasi Am. Corp. V. United States, 10 CIT 154, 157, 641 F.Supp. 808, 810 (1986) (citations omitted).

To apply ejusdem generis , we must ascertain the shared characteristics of the named garments in heading 6207, HTSUSA, and compare them to the submitted garment. All of the garments named in heading 6207, HTSUSA, may be characterized as "intimate apparel" . They are garments which are recognized as either underwear or garments worn indoors in the presence of family or close friends. This office is of the opinion that the submitted men's cotton top is of the "same kind, class or nature" as the exemplars to heading 6207, HTSUSA. The subject garment is a garment designed to be worn indoors . It is sold as a sleepwear garment in the sleepwear section of stores. Accordingly, based upon examination of the garment, its fabric, styling and construction it is obvious that if the subject men's cotton top were sold together with sleepwear bottoms, instead of separately, they would be recognized as sleepwear pajamas. As a separate, it remains a sleepwear garment, but not pajamas.

HOLDING:

The subject men's cotton top, referenced style number 72009T, is properly classified in subheading 6207.91.3010, HTSUSA, which provides for, among other things, nightshirts and pajamas: other: of cotton: other; sleepwear. The applicable rate of duty is 6.5 percent ad valorem and the quota category is 351.

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 negotiations 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 issuance of the U.S. Customs Service, which is updated weekly and is available 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 importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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