CLA-2 CO:R:C:G 085672 DRR 844988
6204.22.3050
Robert T. Stack, Esq.
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, New York 10004
Re: Classification of women's clothing
Dear Mr. Stack:
This is in response to your letter dated July 14, 1989, on
behalf of Dillard Department Stores, Inc. (Dillard's), requesting
the classification of women's garments, under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The merchandise at issue, style 5203, consists of two
pieces. The upper component is styled like a shirt. It has a
full front opening with a placket secured by seven buttons, a
pointed collar, with a collar band, short sleeves with turned-up
cuffs, a single breast patch pocket, a double ply rear shoulder
yoke and a rounded shirttail hemline. The other component is a
pair of pull on short pants with an elasticized waist band. The
garments are made of 100 percent woven cotton yarn dyed striped
fabric and will be imported from India. Your letter indicates
that you believe that the garments are classifiable as pajamas
under subheading 6208.21.0010, HTSUSA.
ISSUE:
Whether the garments at issue are classifiable under
subheading 6208.21.0010, HTSUSA, or subheading 6206.30.3010,
HTSUSA, and subheading 6204.62.4055, HTSUSA.
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LAW AND ANALYSIS:
Classification under the HTSUSA is in accordance with the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section and
chapter notes.
Heading 6208, HTSUSA, provides for women's and girl's
pajamas and similar articles. The Explanatory Notes, the
official interpretation of the HTSUSA at the international level,
state that the garments specified in Heading 6208 are usually
worn indoors.
To assist in the classification of nightwear, Customs looks
to the Textile Category Guidelines, C.I.E. 13/88. These
Guidelines, revised in accordance with the HTSUSA, reflect the
many past Customs Service decisions to classify as pajamas and
other nightwear those garments worn to bed for sleeping. T.D.
87-118, which limited the St. Eve decision to the merchandise
before the court, reiterated Customs' position that nightwear is
sleepwear, and that garments advertised and sold as dresses,
shirts, trousers, beachrobes, or other nonsleep articles are not
classifiable as nightwear. This position is consistent with the
judgment in Mast Industries, that nightclothes are garments to be
worn to bed, and that the garment in question, found to be
designed, manufactured, marketed, and used as nightwear, was so
classifiable. We find no inconsistency in considering these same
factors in classifying pajamas, nightdresses, and similar
garments under the HTSUSA.
Garments that are clearly nightwear generally do not come
before Customs for rulings because there is no doubt as to their
tariff classification. Difficulties arise when garments claimed
to be nightwear resemble dresses, shirts, trousers, or other
garments intended to be worn, not in the privacy of the bedroom,
but for public view. The more closely merchandise resembles
outerwear garments in color, style, and fabric, the more
difficult it is to establish that it is sleepwear.
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Another difficulty arises where the environment of sale, in
addition to the garment styles, is ambiguous. Examination of the
trade press indicates that sleepwear/intimate apparel departments
of stores have sought to increase sales by offering a variety of
clothes in addition to sleepwear and underwear. Visits to the
stores themselves reveal that this is indeed the case. Thus, an
importer's claim that the merchandise is sold in a sleepwear
department is not conclusive of its classification. In many
cases, garments sold in these departments are indistinguishable
from those sold elsewhere.
When goods are not clearly sleepwear, evidence of marketing
in the United States as sleepwear is a factor in classification.
In determining whether a particular garment is to be worn to bed
for sleeping, Customs will consider the sample itself and
whatever information the importer can supply about how the
garment will be marketed and sold. We must also consider how the
same or virtually the same article is advertised and sold by
others. In some cases we receive samples of the same merchandise
from different importers requesting different classifications.
With regard to documentation in support of a claimed
classification, letters of credit, purchase orders, contracts,
confirmations, and other documentation incidental to the purchase
of the merchandise cannot be regarded as conclusive. These
documents can be self-serving and do not necessarily reflect how
merchandise is advertised in the U.S. market. In the instant
case, you have submitted purchase orders and a statement from a
buyer for Dillard's. Your letter indicates that there is no
advertising material available for these garments.
HOLDING:
The garments at issue, when imported separately, are
classified as a shirt and shorts under subheading 6206.30.3010,
HTSUSA, with a duty rate of 16.4 percent and subject to textile
category 341, and subheading 6204.62.4055, HTSUSA, with a duty
rate of 17.7 percent and subject to textile category 348. When
imported together as a set, the garments are classified under
subheading 6204.22.3060, HTSUSA, and subheading 6204.22.3050,
HTSUSA, respectively.
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
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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
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.
Your sample is being returned to you, as requested.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc: Area Dir., N.Y. Seaport
D. Rimmer library/peh
085034