CLA-2 CO:R:C:T 956755 CMR
6212.10.2010
James Marino, Esq.
Neville, Peterson & Williams
80 Broad Street
Suite 3400
New York, New York 10004
RE: Classification of certain sleepwear separates; consolidation
of four ruling requests; mix and match sleepwear garments
Dear Mr. Marino:
This ruling is in response to your requests of June 1994, on
behalf of your client, J. Crew Group, Inc., seeking the
classification of certain women's garments submitted to be
sleepwear. For purposes of simplification, we have consolidated
your four requests in this ruling. Samples were received by this
office. You have requested the withdrawal of four garments from
classification consideration on the basis that J. Crew is not the
importer of record for these goods and thus does not require
rulings on their classification.
FACTS:
Nineteen garments originally were at issue. Customs is
allowing withdrawal of four styles as requested. We will not
address the classification for styles 42361, 42331, 42351, and
42341 which were part of your ruling request submitted by letter
of June 22, 1994. The remaining fifteen garments are claimed to
be women's sleepwear garments with classification sought in
heading 6208, HTSUSA, as women's nightdresses, pajamas, and other
sleepwear. It is claimed the garments will be marketed with
other garments as a line of sleepwear for the 1994 fall season.
No advertising material was submitted and when sought, Customs
was informed none was available at this time. Specification
sheets to show that the styles are intended to be sold as a
single line and as sleepwear were submitted. The garments will
be sized as women's small, medium and large. The majority of the
garments are designed to have a loose, comfortable fit.
-2-
The first four styles described below are constructed from
100 percent cotton yarn dyed tartan plaid flannel woven fabric.
The garments will be manufactured in Portugal.
Style 81181--identified as a pajama top. The garment has
long sleeves hemmed at the wrist opening; a full front
opening secured by four buttons (right over left closure); a
shirt collar; and, a straight, hemmed bottom. It is
somewhat oversized. The garment is to be marketed and sold
with matching bottoms, style 81201.
Style 81201--identified as a tartan pajama pant. The
garment is a pair of long pants with a simple drawstring
waist and two side seam pockets. It will be marketed and
sold with style 81181 (pajama top).
Style 28961--identified as a pullover nightshirt. The
garment is a pullover with a round neckline featuring a
drawstring tie at the neck and a six-inch front opening from
the neckline. The garment has long sleeves with one-inch
cuffs with single button closures, no pockets, a straight
hemmed bottom, side slits and an overall length of 36 inches
(size medium). The garment is generously cut in an
oversized fashion.
Style 5174--identified as a bold tartan nightshirt. The
garment is a pullover featuring a partial front opening with
a four-button closure (right over left), a slightly U-shaped
neckline, a shirttail style hemmed bottom, no pockets, long
sleeves hemmed at the wrist (no cuffs), and an overall
length of 36 inches (size small). The garment is generously
cut in an oversized fashion.
The next sample will be constructed of 100 percent cotton
yarn dyed flannel woven fabric. The garment will be manufactured
in Hong Kong and/or Portugal.
Style 31601--identified as a 100 percent cotton tartan
flannel pajama bottom short. The garment has a self-fabric
covered 3/4-inch elasticized waistband. It has a basic
shorts design and has no fly and no pockets. It will be
marketed with style 81181, pajama top.
The next five samples will be made of 100 percent cotton
woven flannel fabric. The garments will be manufactured in
Portugal.
Style 28951--identified as a 100 percent cotton woven yarn-
dyed plaid flannel pajama top. The garment has long sleeves
which are hemmed at the wrist (no cuffs), a notched collar, -3-
a full front opening secured by four buttons (right over
left closure), and a straight hemmed bottom. The garment
has an oversized appearance.
Style 4044--identified as a royal blue flannel 100 percent
cotton pajama top. The garment has long sleeves which are
hemmed at the wrist (no cuffs), a shirt style collar, a
partial front opening secured by five buttons (right over
left closure), two breast pockets, five-inch side slits, and
a straight hemmed bottom. The garment has an oversized
appearance and features yellow contrasting stitching at the
seams. The garment will be marketed with style 2014.
Style 2014--identified as a royal blue flannel pajama
bottom. The garment is a pair of long pants with an
elasticized tunnel waistband with a drawstring. The garment
has two rear patch pockets, a wide leg design, and yellow
contrasting stitching at the seams. The garment will be
marketed with style 4044.
Style 2024--identified as a royal blue flannel pajama bottom
short. The garment is a pair of shorts with an elasticized
waistband and two rear patch pockets. The garment is
designed to be somewhat oversized. It features yellow
contrasting stitching at the seams and four rows of yellow
contrasting stitching at the hem of the legs. It will be
marketed with style 1984, pajama top.
Style 2034--identified as a pajama romper. The sample is
royal blue flannel. Customs considers this garment to be
properly identified as a jumpsuit as the pants portion of
the garment reaches to the ankles. Rompers are similar
garments, however, they are above the knee in length. The
one-piece garment extends from the neck to the ankles. It
has long hemmed sleeves (no cuffs), a seamed high waistline,
two breast pockets, a shirt collar, and a front opening
secured by six buttons (right over left closure). The
garment is designed for a loose fit and features yellow
contrasting stitching at the seams.
The next five samples are made of 100 percent cotton yarn-
dyed flannel woven fabric, except style 24791 which is a solid
colored flannel. All the garments will be manufactured in
Portugal.
Style 81211--identified as a tartan flannel 100 percent
cotton draw string short. The garment is a pair of shorts
with a 3/4-inch elasticized waistband with a drawstring.
The shorts have two side seam pockets and hemmed leg
bottoms. The garment is designed for a loose fit and will
be marketed with style 9924. -4-
Style 9924--identified as a tartan flannel 100 percent
cotton cropped pajama top. The garment has long hemmed
sleeves (no cuffs), a full front opening secured by five
buttons (right over left closure), a shirt collar, a left
breast pocket, and a straight hemmed bottom. The garment is
designed for a loose fit and will be marketed with style
81211.
Style 29111--identified as a tartan flannel draw string
waist romper. Customs considers this garment a jumpsuit.
The garment extends from the neck to the ankles and has long
hemmed sleeves (no cuffs), an elasticized drawstring waist,
two side seam pockets, a round neckline (no collar), and a
front opening secured by six buttons (right over left
closure).
Style 24791 is an underwire brassiere made with 100 percent
cotton flannel woven fabric. The garment features
adjustable straps and an adjustable back closure (three sets
of double hook and eye closures). The submitted sample is
red flannel with black capping along the top of the cups and
a small black ribbon bow in the center front. The brassiere
is coordinated with style 28071 (panty).
Style 28071 is a 100 percent cotton tartan flannel panty.
The panty has an elasticized waist, elasticized leg
openings, and a double-ply crotch.
ISSUE:
How are the submitted garments classified?
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]."
It is submitted that these garments are women's garments.
Note 8, Chapter 62, states:
Garments of this chapter designed for left over right
closure at the front shall be regarded as men's or boys'
garments, and those designed for right over left closure at
the front as women's or girls' garments. These provisions
do not apply where the cut of the garment clearly indicates
that it is designed for one or other of the sexes.
-5-
Garments which cannot be identified as either men's or boys'
or as women's or girls' garments are to be classified in the
headings covering women's or girls' garments.
The submitted garments with front closures have closures
that are right over left, thus per Note 8 above, these garments
are women's. As to the garments without front closures, we
believe the cut of the garments sufficiently indicate that the
garments are designed for women.
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 determining the classification of garments submitted to
be sleepwear, Customs considers the factors discussed in two
decisions of the Court of International Trade which are often
cited when discussing sleepwear. In Mast Industries, Inc. v.
United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC,
April 1, 1986) the Court of International Trade dealt with the
classification of a garment claimed to be sleepwear. The court
cited several lexicographic sources, among them Webster's Third
New International Dictionary's which defined "nightclothes" as
"garments to be worn to bed." In Mast, the court determined that
the garment at issue therein was designed, manufactured, and used
as nightwear and therefore was classifiable as nightwear.
Similarly, in St. Eve International, Inc. v. United States, 11
CIT 224 (1987), the court ruled the garments at issue therein
were manufactured, marketed and advertised as nightwear and were
chiefly used as nightwear.
In past rulings, Customs has stated that the crucial factor
in the classification of a garment is the garment itself. As the
court pointed out in Mast, "the merchandise itself may be strong
evidence of use." Mast at 552, citing United States v. Bruce
Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when
presented with a garment which is somewhat ambiguous and not
clearly recognizable as sleepwear or underwear or outerwear,
Customs will consider other factors such as environment of sale,
advertising and marketing, recognition in the trade of virtually -6-
identical merchandise, and documentation incidental to the
purchase and sale of the merchandise, such as purchase orders,
invoices, and other internal documentation. It should be noted
that Customs considers these factors in totality and no single
factor is determinative of classification as each of these
factors viewed alone may be flawed. For instance, Customs
recognizes that internal documentation and descriptions on
invoices may be self-serving as was noted by the court in
Regaliti, Inc. v. United States, Slip-Op. 92-80. We have long
acknowledged that intimate apparel/sleepwear departments often
sell a variety of merchandise besides intimate apparel, including
garments intended to be worn as outerwear. See, HRL 955341 of
May 12, 1994 and rulings cited therein; HRL 952105 of July 1992;
HRL 085672 of October 29, 1989; and HRL 955088 of December 14,
1993. With these points in mind, Customs has reviewed your claim
that these garments are classifiable as sleepwear.
Our decision on the classification of these garments is
based largely on the garments themselves, i.e., their fabrication
and design. The only support for classification as sleepwear
presented to us beyond the claim of sleepwear and the garments
themselves were the specification sheets. While not valueless,
the specification sheets are not highly persuasive by themselves.
Mary Brooks Picken's The Fashion Dictionary, (1957), at page
257, defines nightshirt 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." Styles
28961 and 5174 are clearly nightshirts and as such are
classifiable under the provision for nightdresses and pajamas
within heading 6208, HTSUSA.
Styles 81181, 9924, 4044 and 28951 are identified as pajama
tops. With the exception of style 28951, you have indicated that
these garments are marketed with matching style bottoms. As to
style 28951, based upon an examination of the garment, Customs
accepts that this is a pajama top. Styles 81201, 81211, 2014,
2024, 42341 and 31601 are identified as pajama bottoms. You
indicate in your submission that styles 81201, 81211, 2014, 2024
and 31601 are marketed with matching style tops. Based upon an
examination of these garments, Customs agrees that they are
designed, marketed and sold as sleepwear and will be principally
used as such. The National Import Specialist who specializes in
women's woven sleepwear believes the generous cut, wide leg
designs, fabrication, etc., are indicative of sleepwear garments
and this office agrees.
In your submission, you indicate that the pajama top and
pajama bottom styles listed above will be presented as sleepwear -7-
separates in order to allow the purchaser to mix and match tops
and bottoms. Customs has issued recent rulings on similar mix
and match merchandise. In HRL 956202 of September 29, 1994, and
HRL 956239 of October 4, 1994, Customs looked at the historical
treatment of pajamas as a unit and the classification of mix and
match pajama separates based upon their condition as imported.
In that regard, Customs stated in HRL 956202:
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.
If imported separately (shipments of only tops or only
bottoms) or if imported as extra components without a matching
top or bottom in a shipment, sleepwear separates cannot be
classified as pajamas because they fail to meet the common and
commercially understood definition of pajamas in their condition
as imported. See, HRL 956202, HRL 956239, 088635 of May 24,
1991, and HRL 089367 of July 31, 1991.
Sleepwear separates, i.e., pajama tops and pajama bottoms
imported as individual articles, are classifiable in heading
6208, HTSUSA, based upon the rule of statutory construction known
as ejusdem generis. Ejusdem generis means "of the same kind,
class, or nature." Provided the sleepwear separates at issue
possess the same characteristics or purposes as the named
garments in heading 6208, HTSUSA, they may be classified therein
as similar garments. See, HRL 956202.
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. 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 -8-
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 81181, 9924, 4044,
28951, 81201, 81211, 2014, 2024, and 31601, as individual
articles, clearly share characteristics and purpose with the
exemplars to heading 6208, HTSUSA. We believe these garments may
be characterized as intimate apparel. They are designed,
marketed and sold as sleepwear garments and as such they would
not normally be worn outside the home and, when worn, would be
worn only in the presence of family or close friends. Based upon
an examination of these garments, when imported together (tops
with matching bottoms), instead of separately, these garments
would be recognized and classified as sleepwear pajamas. As
separates, they remain sleepwear garments, but not pajamas.
Styles 29111 and 2034 are flannel jumpsuits. The National
Import Specialist agrees with your claim these garments are
sleepwear. The fabric and roominess of the design tend to
support the claim of sleepwear. We agree. In addition, the
marketing of the garments as sleepwear, as part of a sleepwear
line, gives support to the claim the garments are sleepwear and
will be principally used as such. As sleepwear, styles 29111 and
2034 are classifiable within the provision for nightdresses and
pajamas in heading 6208, HTSUSA. Pajamas includes not only
commonly thought of traditional two-piece garment, but also one-
piece garments which cover the torso. See, HRL 088635 and HRL
089367.
As to style 28071, the flannel panty, and style 24791, the
flannel underwire brassiere, Customs does not agree that these
garments are sleepwear. However, we also believe we need not
argue their use in order to determine their classification.
Brassieres are provided for eo nomine in heading 6212,
HTSUSA. "[A]n eo nomine statutory designation of an article,
without limitations or a shown contrary legislative intent,
judicial decision, or administrative practice to the contrary,
and without proof of commercial designation, will include all
forms of said article." Nootka Packing Co. et.al. v. United
States, 22 CCPA 464, 470, T.D. 47464 (1935). The Explanatory
Notes to the Harmonized Commodity and Coding System, the official
interpretation of the tariff at the international level, provide
in part that heading 6212 includes, inter alia, "Brassieres of
all kinds." There is no use distinction or limitation for
classification of brassieres in heading 6212. Therefore, style
24791, a brassiere, is classified in heading 6212.
-9-
Likewise, "panties" are provided for, eo nomine, in heading
6208, HTSUSA. The flannel panty, style 28071, is thus classified
in heading 6208, HTSUSA. It is not classifiable in the
subheadings for slips and petticoats or, nightdresses and
pajamas, as it is not one of these garments. The remaining
subheading is "other". This is the provision within which the
flannel panty is classified.
HOLDING:
Styles 28961 and 5174 are nightshirts classified in the
provision for woven nightdresses and pajamas, of cotton, with
two or more colors in the warp and/or the filling, in subheading
6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5
percent ad valorem.
Style 29111 is a sleepwear jumpsuit classified in the
provision for woven nightdresses and pajamas, of cotton, with
two or more colors in the warp and/or the filling, in subheading
6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5
percent ad valorem.
Style 2034 is a sleepwear jumpsuit classified in the
provision for woven nightdresses and pajamas, of cotton, other,
in subheading 6208.21.0020, HTSUSA, textile category 351,
dutiable at 9.5 percent ad valorem.
Style 28071, a flannel panty, is classified in the provision
for other woven cotton garments, in subheading 6208.91.3010,
HTSUSA, textile category 352, dutiable at 11.9 percent ad
valorem.
Style 24791, a flannel brassiere, is classified as a cotton
brassiere, not containing lace, net or embroidery, in subheading
6212.10.2010, HTSUSA, textile category 349, dutiable at 18
percent ad valorem.
Styles 81181, 9924, 28951, 81201, 81211, and 31601, when
imported in shipments containing matching equal numbers of tops
and bottoms, 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, dutiable at 9.5
percent ad valorem. Styles 4044, 2014, and 2024, when imported
in shipments containing matching equal numbers of tops and
bottoms, are classified as women's other cotton pajamas in
subheading 6208.21.0020, HTSUSA, textile category 351, dutiable
at 9.5 percent ad valorem.
When imported separately, or when imported without a
matching component, styles 81181, 9924, 28951, 81201, 81211,
31601, 4044, 2014, and 2024 are classifiable, ejusdem generis, as -10-
similar articles in subheading 6208.91.3010, 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.
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