CLA-2 CO:R:C:T 956202 CMR
Eleanore Kelly-Kobayashi, Esq.
William Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017
RE: Classification of certain sleepwear garments; mix and match
pajamas; components sold separately
Dear Ms. Kelly-Kobayashi:
This is in response to your submission of April 29, 1994, on
behalf of your client, Eddie Bauer, Inc., regarding the
classification of certain sleepwear garments. The initial ruling
request was submitted by your client on January 21, 1994, to the
District Director of Customs in Seattle. The request was
forwarded to this office for a response.
FACTS:
You have identified the merchandise at issue as a flannel
nightshirt, style 7001 (item 5382/5403), a flannel pajama top,
style 7003 (item 1121/1162), and a flannel pajama long bottom,
style 7002 (item 1431/2469/5327). Each garment is constructed of
the same 100 percent cotton flannel plaid fabric. The nightshirt
has long sleeves with button cuffs, a round collar, and a partial
front opening starting at the neck secured by six buttons. The
garment extends to slightly above the knee in length with a
rounded bottom with side vents and is designed to be loose
fitting. It has the general appearance of a typical nightshirt.
The sleepwear (pajama) top has long sleeves, a full front opening
secured by four buttons, a pointed collar, a straight hemmed
bottom with side vents, two patch pockets below the waist, and
one breast patch pocket The garment extends to just below the
hips and has the general appearance of a typical pajama top. The
sleepwear (pajama) bottoms have an elasticized waistband, no fly,
and the legs extend to the ankles. The pants are designed to be -2-
loose-fitting and have the general appearance of typical pajama
bottoms.
It is submitted that these flannel garments were all
designed, manufactured and will be marketed by Eddie Bauer as
sleepwear garments. The garments will be marketed as part of the
Eddie Bauer cotton flannel sleepwear group and the identical
nightshirt, sleepwear (pajama) top and sleepwear (pajama) bottom
will be available in three other flannel fabric prints--a fish
print design, a ski print design, and a bright plaid design. The
garments will appear in either the Eddie Bauer 1994 Fall
catalogue or the 1994 Holiday catalogue. The garments will be
sold separately as mix and match pajamas.
In a meeting at our offices on June 22, 1994, a member of
your firm provided us with a copy of the planned artwork for
styles 7001, 7002 and 7003 which will appear in the Eddie Bauer
1994 Fall catalogue. The planned artwork shows models wearing
the styles at issue. The accompanying copy identifies the
garments as "Print Pajama Separates" and further identifies style
7003 as "Print Pajama Top" and style 7002 as "Print Pajama
Pants", each priced separately. Style 7001 is identified as a
"Print Nightshirt". The copy describing styles 7002 and 7003
states, in part:
We've captured the spirit of the outdoors in a whimsical
pattern of fish, fly hooks and fall leaves against a cream-colored background. Inspired by the comfort of menswear,
our cotton-flannel top and pants feature a roomy fit you'll
love. * * *
Classification is being sought in subheading 6208.21.0010,
HTSUSA, which provides for, among other things, women's cotton
nightdresses and pajamas, with two or more colors in the warp
and/or the filling.
ISSUE:
Are the submitted garments classifiable in subheading
6208.21.00, HTSUSA, which provides for women's cotton
nightdresses and pajamas; in subheading 6208.91.30, HTSUSA, as
similar garments of cotton; or, are they classifiable as
outerwear in the appropriate headings in Chapter 62?
-3-
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
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 describe the
scope of heading 6208, 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 Explanatory Notes are not legally binding, but do represent
the official interpretation of the Harmonized System at the
international level.
The nightshirt, style 7001, was the subject of PC 895998 of
March 25, 1994, and was classified therein in subheading
6208.21.0010, HTSUSA. Based upon an examination of the sample
garment, that classification determination is correct.
"Night clothes or nightdress" is defined in Mary Brooks
Picken's The Fashion Dictionary, (1957), at 256, as: "Garments
worn while in bed by men, women, children. On the same page,
"nightgown or nightdress" is defined as: "Chemise type of
garment, sleeved or sleeveless, with soft details, worn while in
bed. During mid-20th century, sometimes made top-of-the-hip
length." Webster's II New Riverside University Dictionary,
(1984), at 794, defines "nightdress" as: "1. A nightgown. 2.
Nightclothes." The Guidelines for the reporting of imported
Products in Various Textile and Apparel Categories, CIE, 13/88,
in addressing nightwear describes the term as including "various
articles worn for sleeping, such as nightgowns, night-shirts,
"waltz gowns," etc. Nightdress is defined in various sources as
meaning a nightgown or nightclothes. Viewing the definitions of
nightdress in conjunction with the guidance of the Category
Guidelines, Customs interprets the term as used in the tariff to
mean a type of nightgown.
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On page 257 of The Fashion Dictionary, nightshirt is defined
as a "tailored nightgown". The court in Mast Industries, Inc. v.
United States, 9 CIT 549, 552 (1985), aff'd 786 F. 2d 1144
(1986), citing Webster's Third New International Dictionary,
(1981), at 1528, found the definition of "nightshirt" was "a
nightgown resembling a shirt." Style 7001 is clearly a
nightshirt and as such falls within the general definition of
nightdresses.
Regarding styles 7002 and 7003, each garment is described as
a pajama component, i.e., top and bottom. In HRL 088635 of May
24, 1991, and 089367 of July 31, 1991, Customs addressed the
issue of the meaning of the term "pajamas" for tariff purposes.
Each ruling cited various definitions of pajamas, including:
Essential Terms of Fashion: A Collection of Definitions,
published by Fairchild, defines pajamas, at 128, as: "one or
two-piece item of apparel originally designed for
sleeping...".
The American Heritage Dictionary, Second College Edition, at
page 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 rulings also referred to The Guidelines for the Reporting of
Imported Products in Various Textile and Apparel Categories, CIE
13/88, published by Customs in the December 28, 1988, Federal
Register, at pages 52563-52570, wherein pajamas are described as
being worn by both sexes and all ages, and...:
...consist[ing] 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 of any style
panties. * * * Pajamas are sleepwear. Garments called
"sleepers" (sometimes called Dr. Denton's), one or two-piece
knit sleeping garments for girls', sizes 2-4 and boys' 2-7,
buttoning in front or back and with drop seats in the one-piece style, are in this category. (at page 52569)
In both HRL 088635 and 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 -5-
without their matching pajama tops are not classifiable as
pajamas. The same holds true for the opposite case.
However, 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, if the garments are
imported in shipments of only tops or only bottoms, they cannot
be classified as pajamas, it is not clear if they may be
classified as pajamas when imported in shipments consisting of
equal numbers of matching tops and bottoms.
A review of the historical treatment of pajamas is helpful
to consider at this point. Historically under the previous
tariff, pajamas (tops and bottoms) were classified as a unit
based upon the doctrine of entireties. The doctrine of
entireties no longer has application to garments under the HTSUSA
due to Note 13, Section XI, which requires separate
classification of garments, "unless the context otherwise
requires". Pajamas fall within the exempt language of Note 13.
In a recent ruling, HRL 956492 of September 19, 1994, Customs
discussed the rationale for classification of pajamas as
composite goods. In that ruling, Customs stated:
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.
Classification based upon the doctrine of condition as
imported is a basic tenet of tariff classification. See, Donalds
Ltd., Inc. v. United States, 32 Cust. Ct. 310, 314, C.D. 1619
(1954). In addition, as the court stated in Donalds at 314:
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* * * 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 term
"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.
As stated above, if the garments at issue, style 7003,
sleepwear (pajama) tops, and style 7002, sleepwear (pajama)
bottoms, are imported separately, they cannot be classified as
pajamas as they fail to meet the common and commercially
understood definition of pajamas, in their condition as imported.
In addition, if a shipment of styles 7003 and 7002 contains extra
pieces of either style, those pieces may not be classified as
pajamas. In these situations, i.e., imported without a matching
top or bottom, the garments at issue, styles 7002 and 7003, may
still be classifiable in heading 6208, HTSUSA, as articles
similar to the articles specifically named in the heading. In
deciding if the pajama tops and pajama bottoms imported as
individual articles are classifiable in heading 6208, 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), in 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 -7-
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).
Heading 6208, HTSUSA, specifically provides for women's and
girls' singlets and other undershirts, slips, petticoats, briefs,
panties, nightdresses, pajamas, negligees, bathrobes, dressing
gowns and similar articles. To apply ejusdem generis, we must
ascertain the shared characteristics or purposes of the named
garments in heading 6208, HTSUSA, and decide if styles 7002 and
7003 possess those same characteristics or purposes.
All of the articles named in heading 6208, HTSUSA, may be
characterized as "intimate apparel". They are garments which are
recognized as either underwear (the singlets and other
undershirts, slips, petticoats, briefs and panties), sleepwear
(the nightdresses, pajamas and negligees), or garments normally
worn indoors in the presence of family or close friends (the
negligees, bathrobes and dressing gowns). The explanatory note
cited earlier describes the coverage of heading 6208 as including
women's or girls' underclothing and, after naming the last five
exemplars, "garments usually worn indoors".
Customs is of the opinion that styles 7002 and 7003, as
individual articles, clearly share characteristics and purpose
with the exemplars to heading 6208, HTSUSA. We believe styles
7002 and 7003 may be characterized as intimate apparel. They are
garments that would not be worn outside the home and, when worn,
would be worn only in the presence of family or close friends.
The garments also share a purpose with certain of the exemplars
of heading 6208, HTSUSA. Styles 7002 and 7003 are designed,
marketed and advertised as sleepwear as evidenced by the artwork
submitted at the June meeting. Most important however are the
garments themselves. As the court stated in Mast, 9 CIT 549, 552
(1985), "the merchandise itself may be strong evidence of use."
Citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D.
817 (1963). Based upon an examination of these garments, when
imported together, instead of separately, they would be
recognized and classified as sleepwear pajamas. As separates,
they remain sleepwear garments, but not pajamas.
A final argument has been made that although style 7003, the
pajama top, may not be classified as a pajama if imported without -8-
style 7002, the pajama bottom, style 7003 should be considered a
nightshirt when imported alone. Due to the oversized styling of
the garment, it may be worn alone as a nightshirt and, in fact,
the importer intends to import a greater number of style 7003
based upon an expectation that the garment will be purchased
alone for that very use. Based upon an examination of the
garment, we conclude that standing alone, style 7003 does meet
the general definition of a nightshirt and it is reasonable to
conclude it will be purchased and used as such.
HOLDING:
When imported together in shipments containing matching
equal numbers of styles 7002 and 7003, these garments are
classified as women's cotton pajamas with two or more colors in
the warp and/or filling in subheading 6208.21.0010, HTSUSA,
textile category 351 and dutiable at 9.5 percent ad valorem.
When imported separately, style 7002, the pajama bottoms, is
classifiable, ejusdem generis, as a similar article in subheading
6208.91.3010, HTSUSA, it is of the same class or kind, as the
exemplars of heading 6208, HTSUSA. Garments classifiable in this
subheading are subject to a rate of duty of 11.9 percent ad
valorem and fall within textile category 352.
When imported separately, style 7003, the pajama top, is
classifiable in subheading 6208.21.0010, HTSUSA, which provides
for nightdresses and pajamas, of cotton, with two or more colors
in the warp and/or the filling. The nightshirt, style 7001, is
also classifiable in subheading 6208.21.0010, HTSUSA, which
provides for nightdresses and pajamas, of cotton, with two or
more colors in the warp and/or the filling. Garments classified
in this subheading are subject to a rate of duty of 9.5 percent
ad valorem and fall with textile category 351. Style 7001 was
correctly classified in PC 895998 of March 25, 1994.
The designated textile and apparel category 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 renegotiations and
changes, to obtain the most current information available, we
suggest 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 your local Customs office.
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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 importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division