CLA-2 CO:R:C:T 956239 CMR
Ms. Ludene Murphree
The GAP, Inc.
Two Harrison Street
San Francisco, CA. 94105
RE: Classification of a women's woven stripe pajama separates;
boxer style sleep bottom, style #727171; long sleep pant,
style # 727160; sleep shirt, style #727159; pajama components
sold separately; similar articles; heading 6208, HTSUSA
Dear Ms. Murphree:
This is in response to your request of January 21, 1994, for
a classification ruling on a women's boxer style sleep bottom,
supplemented by your request of June 28, 1994, for classification
of the matching sleep shirt and long sleep pant. Sample garments
were submitted with your request to Customs. Your supplemental
submission of June 28th included sample garments, garment
specification sheets and information regarding how the garments
will be marketed and sold at retail.
FACTS:
Style 727171, is a women's woven stripe boxer style short.
Style 727160 is a women's woven stripe long pant. Style 727159 is
a women's woven stripe shirt. All of the garments are made of the
same 100 percent cotton, lightweight, somewhat sheer, woven striped
fabric.
Style 727171 has a 7/8-inch self-fabric tubular elasticized
waist with a same fabric drawstring for tightening. Small lace
trim is sewn around the leg openings. Style 727160 has a 3/4 to
7/8-inch self-fabric tubular elasticized waist with a same fabric
drawstring for tightening. The pant legs extend to the ankles and
have a simple straight hem. Style 727159 has long sleeves, a
slight v-shaped neckline, no collar, a full-front opening secured
by four large flat buttons, two patch pockets at or below the
waist, a straight hemmed bottom and eight-inch side vents. The
garments will be sized XS-L and will be produced in Hong Kong for
sale in the United States in Banana Republic stores. -2-
The garments will be displayed together on hangers in the
underwear or intimate apparel section of Banana Republic stores
and will be sold separately. In your June 28th letter, you
referred to these garments as matching pajama pieces and stated
they are intended to be worn for sleep. The reason for offering
the garments as separates is to give women the choice of purchasing
a long or short leg pajama bottom and a pajama top.
Your samples will be returned, as requested, under separate
cover.
ISSUE:
Are the submitted garments classifiable in subheading
6208.21.00, HTSUSA, which provides for women's cotton nightdresses
and pajamas; or, are they classifiable in subheading 6208.91.30,
HTSUSA, as similar garments of cotton; or, are they classifiable
as outerwear in the appropriate headings in Chapter 62?
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.
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:
-3-
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 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. -4-
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:
* * * 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 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. 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 727159,
sleepwear shirt; style 727171, sleepwear boxer shorts; and style
727160, sleepwear long pant, 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 727159, 727171
and 727160 contains extra pieces, e.g., more bottoms than shirts, -5-
those extra pieces may not be classified as pajamas. In these
situations, i.e., imported without a matching top or bottom, the
garments at issue, styles 727159, 727171 and 727160, may still be
classifiable in heading 6208, HTSUSA, as articles similar to the
articles specifically named in the heading. In deciding if the
sleepwear shirts and sleepwear 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 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 727171,
727160 and 727159 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 believes that styles 727171, 727160 and 727159 are
"of the same kind, class, or nature" as the exemplars to heading
6208, HTSUSA. We believe these garments may be characterized as -6-
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. They are sold
as sleepwear garments in the underwear or sleepwear section of
stores. However, most important 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, their fabric, styling and
construction make it obvious that if they were sold together,
instead of separately, they would clearly be recognized as
sleepwear pajamas. As separates, they remain sleepwear garments,
but not pajamas.
HOLDING:
When imported together in shipments containing equal numbers
(pairs) of matching shirts and bottoms of styles 727159, 727160
and 727171, the matching garments are classified as women's woven
cotton pajamas in subheading 6208.21.0020, HTSUSA, textile category
351 and dutiable at 9.5 percent ad valorem.
When imported separately, or when imported without a matching
component, styles 727159, 727160 and 727171 are classifiable,
ejusdem generis, as similar articles in subheading 6208.91.3010,
HTSUSA. They are 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.
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.
-7-
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