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HQ 960523




August 8, 1997
CLA-2 RR:TC:TE 960523 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.21.0010; 6208.91.3010

Patrick D. Gill, Esq.
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Classification of women's woven sleepwear separates; mix and match sleepwear garments; consolidation of two ruling requests

Dear Mr. Gill and Ms. Kobayashi:

This is in response to your letters of April 1997, on behalf of your client, Hampton Industries, requesting a classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for certain women's woven sleepwear. Samples were submitted to this office for examination.

FACTS:

The submitted garments consist of nine samples representative of three groups of 100 percent cotton women's flannel plaid garments. The first group consists of three matching garments, i.e., top, pants and shorts. The second group consists of two matching garments, i.e., a top and a pant. Finally, the third group of garments consist of a matching top, pants and shorts, and another pant. You state in your submission that these items are sold separately so that the customer has the option of buying a different size or different style top and bottom, depending on the needs and taste of the individual. No advertising material was submitted to this office. However, in support of the claim that these are sleepwear garments, you submitted letters from the buyers of this merchandise, major retailers (Kohl's, Ross Stores, Atkins, Kmart, Target, Hill Stores) in which the sleepwear buyers confirm that these garments are being purchased and will be marketed and displayed in the sleepwear/pajama departments as garments to be worn to bed. All of the garments are designed to have a loose, comfortable fit.

Although style numbers were not submitted for these garments, the hang tags do identify the following numbers:

Bottoms

1322K, 0770, 0770B long hemmed pant featuring: side pockets, covered elasticized waist, tunnel with drawstring closure; these pants are also available with an internal drawstring

114-7206, 114-7412, 7118D, 7118S, 0670S, 0670 short pant featuring: covered elasticized waist with internal drawstring closure, mock fly with two buttons, one side pocket

7018D long pant featuring: elasticized ankles, side pockets, elasticized waist with internal drawstring closure; these pants are also available with rib knit cuffs

7018E, 1317K, 0771 long pant featuring: ribbed knit fabrics at the ankles, exposed contrasting colored elastic waistband, two side pockets

117-2725, 117-2733 long pant featuring: ribbed knit fabric at the ankles, covered elasticized waistband, two side pockets

7118E short pant featuring: one side pocket, contrasting colored exposed elastic waistband

* You state that all of the pajama bottoms are available with either one or two side seam pockets.

Tops

1545, 0471 long shirt approximately 39 inches in length and features: banded collar, long hemmed sleeves, full front opening with eight button closure, a left chest pocket, shirttail bottom, corduroy sweat patch on the inside of the back panel and corduroy locker loop on the back panel

0470, 7026 long shirt approximately 38 inches in length and features: pointed collar, long hemmed sleeves, full front opening with seven button closure, hidden placket, two large chest pockets, and shirttail bottom

117-2741, 117-2758, 7081, 7081S, 0472S, 0472 long shirt approximately 38 inches in length and features: pointed collar, long hemmed sleeves, full front opening with seven button closure, rear yoke and locker loop, two patch chest pockets with button flaps, and rounded bottom

ISSUE:

What is the proper classification for these garments when sold separately and when imported together with matching tops and bottoms, or imported separately?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed according to the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied in the order of their appearance.

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 (EN) are not legally binding, but represent the official interpretation of the Harmonized System at the international level. The EN describe the scope of heading 6208, HTSUSA, 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 garments identified by the hangtags as 1545, 0471, 0470, 7026, 117-2741, 117-2758, 7081, 7081S, 0472S, and 0472 are of a type often identified as a nightshirt (nightdress) or "chemise". Nightshirt is defined as:

1. Garments worn while in bed by men, women, children; chemise type of garment, sleeved or sleeveless, with soft details, worn while in bed... Mary Brooks Picken, The Fashion Dictionary at 256, (1957)

2. a nightgown; nightclothes, Webster's II New Riverside University Dictionary at 794, (1984)

These definitions illustrate that the term "nightshirt" is vague at best; they are general terms used to describe various types of sleepwear garments. The term itself refers to the styling or cut of the garment as a simple, straight, loose hanging garment.

Aspects of the silhouette and styling of 1545, 0471, 0470, 7026, 117-2741, 117-2758, 7081, 7081S, 0472S, and 0472 can be associated with sleepwear type garments, as for example features such as the full front button opening, the shirttail or rounded bottom, and the loose and ample sizing of the garments. These types of garments are more commonly and commercially recognized as suitable for sleepwear. See, HQ 955295, dated January 28, 1994; HQ 955710, dated January 27, 1994; HQ 952528, dated January 15, 1993; HQ 950214, dated July 16, 1994; HQ 951184, dated June 19, 1992; and HQ 951182, dated June 18, 1992. As such, these "nightshirts" fall squarely within heading 6208, HTSUSA.

The remaining garments consist of the long pants (1322K, 0770, 0770B, 7018D, 7018E, 1317K, 0771, 117-2725, 117-2733) and the short pant (114-7206, 114-7412, 7118D, 7118S, 0670S, 0670, 7118E). In HQ 088635, dated May 24, 1991, and HQ 089367, dated July 31, 1991, Customs addressed the meaning of the term "pajamas" and concluded that no support could be found for the proposition that the common meaning of the term included the individual components of a pajama set standing alone. That is to say, 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 the garments at issue we must examine how they will be imported. While it is clear from the discussion above that if the garments are imported in shipments of only tops or bottoms they cannot be classified as pajamas, it is not clear if they may be classified as pajamas when imported in shipments consisting of unequal numbers of tops and bottoms.

In Customs ruling, HQ 956492, dated September 19, 1994, Customs determined that pajamas are to be treated as composite goods. The rationale given was that the components are adapted to each other, they are mutually complementary, and they form a whole which would not normally be offered for sale in separate parts.

As was stated in HQ 956202, dated September 29, 1994, regarding the classification of sleepwear garments which were being imported in unequal amounts and consisted of a top and bottom component, "classification based upon the doctrine of condition as imported is a basic tenet of tariff classification". Quoting the court in Donalds Ltd., Inc. v. United States, 32 Cust. Ct. 310, 314, C.D. 1619 (1954), HQ 956202 stated that:

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

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 terms "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.

Accordingly, if a shipment consists of extra pieces of either tops or bottoms, or the subject garments are imported separately, those extra pieces may not be classified as pajamas but may still be classifiable in heading 6208, HTSUSA, under the rule of ejusdem generis, i.e., as articles similar to the articles specifically named in the heading (See, Van Dale Industries v. United States, Slip Op. 94-54, (decided April 1, 1994)).

To apply ejusdem generis we must ascertain whether the characteristics or purposes of the garments in question, the remaining bottoms, are shared by the specified exemplars in heading 6208, HTSUSA. Heading 6208, HTSUSA, 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 these articles may be characterized as "intimate apparel". They are garments recognized as either underwear (singlets and other undershirts, slips, petticoats, briefs and panties), sleepwear (nightdresses, pajamas and negligees), or garments normally worn indoors in the presence of family or close friends (bathrobes, dressing gowns).

The submitted bottoms as individual garments, clearly share characteristics and purpose with the exemplars to heading 6208, HTSUSA. As the court stated in Mast, 9 CIT 549, 552 (1985), (citing the court in United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963)), "the merchandise itself may be strong evidence of use." Based upon both the physical characteristics of these garments, and the submitted documentation from the major buyers and retailers of this merchandise labeling these garments as "sleepwear", we are of the opinion that these garments may be characterized as intimate apparel- garments that are worn in the privacy of one's home. Particularly, features as the loose cut and design of the pants, and in some cases, the ribbed knit cuffs or elasticized cuffs at the legs, indicate that these are sleepwear garments. Accordingly, as sleepwear separates, they remain sleepwear garments, but not pajamas. However, as we have already discussed, when imported together with matching tops and bottoms, they are classified as pajamas. This is consistent with past Customs rulings which have classified virtually identical sleepwear separates in heading 6208. See, e.g., HQ 956755, dated November 10, 1994, and HQ 957757, dated April 11, 1995.

HOLDING:

When imported separately or without a matching bottom component, the nightshirts, referenced numbers 1545, 0471, 0470, 7026, 117-2741, 117-2758, 7081, 7081S, 0472S, and 0472, are classifiable in subheading 6208.21.0010, HTSUSA, which provides for inter alia, woven nightdresses and pajamas, of cotton, with two or more colors in the warp and/or the filling. The applicable rate of duty is 9.3 percent ad valorem and the quota category is 351.

When imported separately or without a matching top component, the bottoms, referenced numbers 1322K, 0770, 0770B, 114-7206, 114-7412, 7118D, 7118S, 0670S, 0670, 7018D, 7018E, 1317K, 0771, 117-2725, 117-2733, and 7118E, are classifiable, ejusdem generis, as similar articles in subheading 6208.91.3010, HTSUSA. Garments classifiable in this subheading are subject to a rate of duty of 11.7 percent ad valorem and the quota category is 352.

When imported together in shipments containing equal numbers (pairs) of matching tops and bottoms of the above referenced numbers ( 1545, 0471, 0470, 7026, 117-2741, 117-2758, 7081, 7081S, 0472S, 0472, 1322K, 0770, 0770B, 114-7206, 114-7412, 7118D, 7118S, 06070S, 0670, 7018D, 7018E, 1317K, 0771, 117-2725, 117-2733, and 7118E), the matching garments are classifiable in subheading 6208.21.0010, HTSUSA, which provides for inter alia, women's cotton pajamas with two or more colors in the warp and/or filling. The applicable rate of duty is 9.3 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, we suggest that your client 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 the 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, your client should contact the 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 Division

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