CLA-2 CO:R:C:T 088564 PR
Ms. Julie White
Import Office
Nordstrom, Inc.
1321 Second Avenue
Seattle, Washington 98101
RE: Classification of a Two-Piece Garment Set; Pajamas
vs. Thermal Underwear
Dear Ms. White:
This is in reply to your request of December 26, 1990,
addressed to our office in Seattle, concerning the classification
of a two-piece garment set produced in Greece. Our ruling on the
matter follows.
FACTS:
Although seven sample sets of garments were submitted with
this ruling request, only one sample, Style 820, was forwarded to
this office and that style is not listed as one of those
submitted.
We assume that Style 820 is representative of the submitted sets.
Style 820 is a set of two garments of identical fine knit
fabric--a crew neck pullover with long sleeves, rib knit cuffs
and
neckband, and a straight hemmed bottom; and ankle-length pants
with
an elasticized waist and rib knit cuffs. The pants do not have a
fly front. The white fabric forming the garment has been printed
with a continuous pattern of yellow school buses, green crayons,
red stop signs with blue borders, and various colored stars. The
garments are labeled to be size 6 and do not appear to be
identifiable as either boys' garments or as girls' garments. The
merchandise does not meet federal fire retardant requirements for
sleepwear and the label in each garment specifically states, "
THIS
GARMENT IS UNDERWEAR NOT INTENDED FOR SLEEPWEAR". Numerous
copies
of purchase orders were submitted together with advertising and
order blanks to show that Nordstrom's ordered and sold the
subject
merchandise as "underwear". Also submitted was a statement from
an
official of Nordstrom's that the merchandise would be sold as
underwear.
ISSUE:
The issue presented is whether the sample set of garments
are
classifiable as pajamas or as underwear.
LAW AND ANALYSIS:
We have received reports from two of our National Import
Specialists (our commodity experts). One believes that the
subject
merchandise should be classified as underwear and the other
believes that it is pajamas. They are both in agreement that the
garments in question are multipurpose apparel capable of use as
underwear, nightwear, and play wear.
Imported goods are classifiable according to the General
Rules
of Interpretation (GRI's) of the Harmonized Tariff Schedule of
the
United States Annotated (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms
of the headings and any pertinent section or chapter notes.
GRI 2 is not applicable in this situation.
GRI 3(a) requires that where two or more headings describe
the
merchandise, the more specific will prevail; or if two or more
headings each refer to part only of the materials in the goods,
then classification will be by GRI 3(b). GRI 3(b) is also not
pertinent to this merchandise. In the event that the applicable
headings are equally specific, then the goods are classifiable
according to GRI 3(c) under the provision which occurs last in
numerical order among those provisions being considered.
Customs views the underwear and sleepwear provisions of the
tariff schedule to be eo nomine by use provisions. That is,
whether or not merchandise is classifiable under those provisions
is dependent on whether the merchandise is used as sleepwear or
as
underwear. In this regard, additional U.S. Rule of
Interpretation
1(a) provides that in the absence of context to the contrary, a
tariff classification controlled by use, other than actual use,
is
to be determined by the principal use in the United States at, or
immediately prior to, the date of importation, of goods of the
same
class or kind of merchandise.
In order to determine the principal use of merchandise,
Customs will usually look to how that merchandise is viewed in
the
commercial arena. HRL 088192, February 20,1991. If a garment is
one of a class of apparel that is bought and sold at the
wholesale
level, and advertised and sold at the retail level for a specific
purpose, then that is fairly good evidence of principal use (that
use which exceeds each other use).
While the labels in each of the garments forming the set are
a factor to be considered in the classification of those garments
,
the labels are not dispositive of the garments identity. Such
labels are self serving and will not prevent the garments from
being used in whatever manner the purchaser desires. As an
article
in the April 1990 issue of Kids Fashions, at page 32, points out,
by law, retailers can't call garments of this nature sleepwear
because the material does not meet the flammability standards set
by the government; however, how the garments will be used is a
decision that is left to the parents.
Normally the submission of purchase orders and evidence of
how
certain merchandise is advertised and sold is sufficient for
Customs to determine the commercial identity of a particular
garment. However, in this instance, numerous advertisements were
submitted showing similar type garments and most indicated that
they were sold as pajamas.
One advertisement submitted in support of the merchandise
being underwear came from the J.C. Penney Fall & Winter Catalog,
1988, at page 666. The merchandise appears from the description
to
be made from a different fabric ("Tiny airpockets (sic) help
retain
body heat.") and appears from the picture to be tighter fitting
than the instant sample. We note that the garments advertised as
pajamas in the 1990 J.C. Penney Fall & Winter Catalog, at pages
620
and 621, more closely resemble the sample in fabric construction
and appearance than those pictured in the 1988 catalog.
In addition, the article contained in Kids Fashions, cited
above, also described how a large children's clothier "finds that
his customers are buying off the play wear racks in order to get
100 percent cotton sleeping attire for their kids." This
evidence
is not normally considered in determining chief use. However,
here
we have garments that are, by their nature, susceptible to more
than one use. In such a situation, evidence showing that when
these garments are sold as underwear or play wear they will be
purchased with the intent of using them as sleepwear is pertinent
and must be considered, particularly since there is no evidence
that when the garments are sold as sleepwear they are purchased
for
use as underwear or play wear.
Considering all the advertisements, purchase orders, our own
experience in the area of children's sleepwear, and the samples
themselves, we are convinced that regardless of the disclaimer
contained on the labels, the samples belong to a class of goods
which are principally used as sleepwear (pajamas).
Chapter 61, Note 8, HTSUSA, provides that articles which
cannot be identified as either men's or boys' garments or as
women's or girls' garments are to be classified under the
headings
covering women's or girls' garments." The submitted sample is
not
identifiable as being intended for wear by either sex. Therefore
,
these garments are classifiable under the provisions for girls'
apparel.
HOLDING:
Garments represented by the submitted samples are
classifiable
under the provision for girls knit cotton pajamas, in subheading
6108.21.0020, HTSUSA. As a product of Greece, the merchandise is
dutiable at the rate of 8.1 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division