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HQ 962007




November 23, 1998

CLA-2 RR:CR:TE 962007 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6207.21.0030

Ms. Ludene Murphree
The Gap, Incorporated
2 Harrison Street, Second Floor
San Francisco, California 94105-1603

RE: Request for Reconsideration of NY C86234; Pajamas and Pouch; Composite Article; Void Ab Initio

Dear Ms. Murphree:

This is in response to your request dated May 12, 1998, for reconsideration of New York Ruling Letter (NY) C86234, issued May 5, 1998, in which an article consisting of a pair of men's woven cotton pajamas and a woven cotton pouch were separately classified in subheadings 6207.21.0030 and 4202.92.1500, HTSUSA, respectively.

FACTS:

In NY C86234, the separately classified woven cotton pajamas and pouch were identified as style 407918. Examination of the sample article reveals that the pajama top is a short-sleeved, V-neck pullover with a hemmed bottom and a breast pocket. The pajama pants feature a covered drawstring waist, a fly without a closure, hemmed leg bottoms, and a rear pocket. The sample cotton pouch, which measures approximately 14 inches in height by 14 inches in width and has a covered, drawstring closure, is of the same color as the pajama pants and top, and is constructed of the same material. The exterior of the pouch features no printing, drawing, labeling, advertising, or other descriptive information as to the contents.

You state that NY C86234 is the first ruling you have received in which an article consisting of a nightshirt or pajamas imported for retail sale with a self (matching) fabric bag, was not classified as a composite good. You note that in several prior ruling letters, e.g., NY A87021, NY A87023, and NY A87302, all issued to The GAP, Inc., on September 6, 1996 (and in several Pre-Entry Classification Determinations (PC) issued to The GAP, Inc., these being, PC B86375, issued June 26, 1997, PC B88544, issued September 11, 1997, PC B89287, issued October 9, 1997, and PC C80663, issued October 29, 1997), goods consisting of sleepwear components and matching carry bags have been classified as composite articles in which the sleepwear components were found to impart the essential character of the complete article.

You have also stated that - unlike the featureless bag component of sample style 407918 provided to Customs - the bags of all such articles actually imported (including the actual pouch imported with style 407918) feature printing, drawing, labeling, advertising, and/or other information on the bag that describes the sleepwear the bags are designed and intended to contain. Descriptions of the bags subject to the three binding rulings cited in the previous paragraph confirm your statement. For example, the description of the sample bag subject to NY A87021 states:

The bag features a large label which displays a drawing of its contents (pajamas), the size of the garments (S), the fiber content (100% cotton), the country of origin (Philippines) and the words "OLD NAVY Women's flannel pajamas".

ISSUE:

Whether the men's pajamas and matching pouch are separately classified or are classified together as a composite article.

LAW AND ANALYSIS:

Prior to addressing the classification issue presented, it is necessary to discuss the duties, responsibilities and obligations of parties seeking rulings from Customs in the post "Mod Act" era. The North American Free Trade Agreement Implementation Act of 1993 included major provisions in Title VI of that Act relating to Customs Modernization which have come to
be known as the "Mod Act." The Mod Act has transformed the way the Customs Service and importers do business. Primary among these changes is a new responsibility called informed compliance that is shared between the trade community and the U.S. Customs Service. Informed compliance permeates virtually all import transactions and determines how government and the trade community will interact. Informed compliance has inspired new protocols and stratagems under which the importing community and government have new rights and responsibilities toward each other.

At the heart of informed compliance is a strategy called reasonable care, in which the trade community demonstrates its exercise of due diligence by following the suggestions and protocols promulgated by the Customs Service in its publications, which include not only the various informed compliance publications available on Customs Web site (www.customs.ustreas. gov), but also include Customs rulings, Customs Regulations, Court decisions and law.

Informed compliance is a shared responsibility between Customs and the importing community by which Customs communicates its requirements to the trade, and the people and businesses subject to those requirements conduct their regulated activities in accordance with U.S. laws and regulations. A key component of informed compliance is the expectation that the importer will exercise reasonable care in his or her importing operations.

Informed compliance benefits both parties. When voluntary compliance is achieved, Customs resources need not be inefficiently expended. From the trade perspective, when voluntary compliance is attained, compliant parties are less likely to have their shipments examined or their entries reviewed and more likely to receive their merchandise quickly.

Reasonable care is an explicit responsibility on the part of the importer. Despite its seemingly simple connotation, the term reasonable care defies easy explanation because the facts and circumstances surrounding every transaction differ, from the experience of the importer to the nature of the imported articles.

During the course of any transaction, however, it is the responsibility of the importer to provide the Customs Service with all information necessary to make a proper decision. When a
ruling request is made, section 177.2 of the Customs Regulations (19 CFR 177.2) offers guidance as to the information which must be provided to Customs:

(b) Content-(1) Generally. Each request for a ruling must contain a complete statement of all relevant facts relating to the transaction. Such facts include...a description of the transaction itself, appropriate in detail to the type of ruling requested.

(2) Description of transaction-(i) Generally. The Customs transaction to which the ruling request relates must be described in sufficient detail to permit the proper application of relevant Customs and related laws.

(ii) Tariff classification rulings. (A) If the transaction involves the importation of an article for which a ruling as to its proper classification under the provisions of the Harmonized Tariff Schedule of the United States is requested, the request for a ruling should include a full and complete description of the article and whenever germane to the proper classification of the article, information as to the article's chief use in the United States....

As stated in section 177.9 of the Customs Regulations (19 CFR 177.9), a ruling letter issued by Customs is binding on all ports and represents the position of the Customs Service with respect to that particular transaction:

(a) Effect of ruling letters generally. A ruling letter issued by the Customs Service under the provisions of this part represents the official position of the Customs Service with respect to the particular transaction or issue described therein and is binding on all Customs Service personnel in accordance with the provisions of this section until modified or revoked.

In order for an accurate classification determination to be made, the onus is on the party seeking a ruling to provide all necessary information for the classification of that merchandise to Customs. The facts of this case indicate that there has been
a material omission of facts by the importer with respect to the subject merchandise. The featureless exterior of the sample bag provided to Customs for classification purposes is not representative of the merchandise actually imported, i.e., the actual pouch imported with style 407918 features printing, drawing, labeling, advertising, and/or other information on its exterior surface which describes the sleepwear the pouch is designed and intended to contain.

At the time NY C86234 was issued, Customs had no indication that the importer had submitted insufficient information to warrant the issuance of a ruling as per the terms of sections 177.3 and 177.7 of the Customs Regulations. Given the facts provided at the time, the classification determination in NY C86234 was accurate. The facts which you currently relate concerning the features and characteristics of the pouch component actually imported indicate that the pajamas and pouch are properly classified as a composite article in subheading 6207.21.0030, HTSUSA. Since there was an omission of relevant facts in connection with the issuance of NY C86234, we find that the ruling was void ab initio (i.e., null from the beginning). Accordingly, there is no need to either revoke or modify NY C86234. (See also, Headquarters Ruling Letters (HQ) 961505, issued August 20, 1998, and HQ 952349, issued August 17, 1992.)

HOLDING:

The composite article identified by style 407918 and consisting of men's woven cotton pajamas and a matching woven cotton pouch, is classified in subheading 6207.21.0030, HTSUSA, textile category 351, the provision for "Men's or boys' singlets and other undershirts, underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles: Nightshirts and pajamas: Of cotton, Other: Men's." The general column one duty rate is 9.3 percent ad valorem.

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 renegotiations 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 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 applicable to textile merchandise, 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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