CLA-2 CO:R:C:T 956505 jb
Ryden Richardson, Jr.
Carmichael International Service
533 Glendale Boulevard
Los Angeles, CA. 90026-0057
RE: Classification of women's woven sleepwear; components sold
separately; shipped and entered in unequal amounts
Dear Mr. Richardson:
This is in response to your letter dated March 25, 1994, on
behalf of your client, Venture Stores, requesting a
classification ruling under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) for women's woven sleepwear.
Samples were submitted to this office for examination.
FACTS:
The submitted samples are all made of 100 percent silk woven
jacquard fabric and are manufactured in China. The merchandise
is stated to be, and is being advertised as, "sleepwear". The
four submitted samples are as follows:
1. a sleepshirt, referred to as style number GV1010,
approximately 36 inches long and features a full
frontal opening secured by six fabric covered buttons,
a notched collar and a rounded shirt tail bottom;
2. a chemise, referred to as style number GV1011, a
loose-fitting styled garment that extends to
approximately three inches above the knee and features
non-adjustable shoulder straps, a V-shaped
neckline, a straight line back and a slightly
flared bottom;
3. a sleeveless pullover tank, referred to as style number
GV94300, features shoulder straps that are approximately
two inches wide;
4. a boxer short, referred to as style number GV94301,
features an elasticized waist with two
nonfunctional buttons and a closed fly.
You state that the pullover tank and the boxer short will be
imported in unequal numbers. That is to say, each shipment might
contain extra sets of pullover tanks or boxer shorts.
ISSUE:
What is the proper classification for these garments when
sold separately as sleepwear components?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
according to the General Rules of Interpretation (GRI). GRI 1
requires that classification be determined according to the terms
of the headings and any relative section or chapter notes. Where
goods cannot be classified solely on the basis of GRI 1, the
remaining GRI will be applied in the order of their appearance.
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 (EN) are not
legally binding, but represent the official interpretation of the
Harmonized System at the international level. The EN describe
the scope of heading 6208, HTSUSA, 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).
Style numbers GV1010 and GV1011 are of a type often
identified as a nightshirt (nightdress) or "chemise". Nightshirt
is defined as:
1. Garments worn while in bed by men, women, children;
chemise type of garment, sleeved or sleeveless,
with soft details, worn while in bed... Mary Brooks
Picken, The Fashion Dictionary at 256, (1957)
2. a nightgown; nightclothes, Webster's II New Riverside
University Dictionary at 794, (1984)
3. various articles worn for sleeping, such as nightgowns,
night-shirts, "waltz gowns," etc., The Guidelines for
the reporting of imported Products in Various Textile
and Apparel Categories, CIE, 13/88
Chemise is defined as:
1. The "easy-going type" of dress, cut slimly and with no
definite waistline in sight. It drops from the shoulder, must fit well at the bosom and hips although it
ignores the waist completely. Usually worn short for
effectiveness and sometimes referred to as a "shift".
George E. Linton, The Modern Textile and Apparel
Dictionary, at 98, (1973)
2. Loose combination undergarment for women, hanging
straight from the shoulders, covering torso. Originally, with or without sleeves, worn next to skin;
formerly called shift, also smock. Mary Brooks Picken,
The Fashion Dictionary, at 64, (1973)
3. A woman's one-piece undergarment; a loose straight- hanging dress. Webster's Ninth New Collegiate
Dictionary, at 231, (1991)
These definitions illustrate that the terms "nightshirt" or
"chemise" are vague at best; they are general terms used to
describe various types of sleepwear garments. The term itself
refers to the styling or cut of the garment as a simple,
straight, loose hanging garment.
Aspects of the silhouette and styling of GV1010 and GV1011
can be associated with sleepwear type garments, as for example,
the button front feature found in GV1010 and the non-adjustable
straps and wide flare bottom edge features found in GV1011.
These types of garments are more commonly and commercially
recognized as suitable for sleepwear. See, HQ 955295, dated
January 28, 1994; HQ 955710, dated January 27, 1994; HQ 952528,
dated January 15, 1993; HQ 950214, dated July 16, 1994; HQ
951184, dated June 19, 1992; and HQ 951182, dated June 18, 1992.
As such, style numbers GV1010 and GV1011 fall squarely within
heading 6208, HTSUSA.
The remaining garments, the sleeveless pullover tank
(GV94300) and boxer short (GV94301) are advertised as being sold
separately and not as a set. In HQ 088635, dated May 24, 1991,
and HQ 089367, dated July 31, 1991, Customs addressed the meaning
of the term "pajamas" and concluded that no support could be
found for the proposition that the common meaning of the term
included the individual components of a pajama set standing
alone. That is to say, pajama bottoms imported without their
matching pajama tops are not classifiable as pajamas (the same
holds true for the opposite case).
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 that 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 unequal
numbers of tops and bottoms.
In Customs ruling, HQ 956492, dated September 19, 1994,
Customs determined that pajamas are to be treated as composite
goods. The rationale given was that the components are adapted
to each other, they are mutually complementary, and they form a
whole which would not normally be offered for sale in separate
parts.
As was stated in HQ 956202, dated September 29, 1994,
regarding the classification of sleepwear garments which were
being imported in unequal amounts and consisted of a top and
bottom component, "classification based upon the doctrine of
condition as imported is a basic tenet of tariff classification".
Quoting the court in Donalds Ltd., Inc. v. United States, 32
Cust. Ct. 310, 314, C.D. 1619 (1954), HQ 956202 stated that
...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 terms "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.
Accordingly, if a shipment consists of extra pieces of
either tops or bottoms, as you state is the case of style number
GV94300 (pullover tank) and GV94301 (boxer short), those extra
pieces may not be classified as pajamas but may still be
classifiable in heading 6208, HTSUSA, under the rule of ejusdem
generis, i.e., as articles similar to the articles specifically
named in the heading (See, Van Dale Industries v. United States,
Slip Op. 94-54, (decided April 1, 1994)).
To apply ejusdem generis we must ascertain whether the
characteristics or purposes of the garments in question, styles
GV94300 and GV94301, are shared by the specified exemplars in
heading 6208, HTSUSA. Heading 6208, HTSUSA, 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 these articles may
be characterized as "intimate apparel". They are garments
recognized as either underwear (singlets and other undershirts,
slips, petticoats, briefs and panties), sleepwear (nightdresses,
pajamas and negligees), or garments normally worn indoors in the
presence of family or close friends (bathrobes, dressing gowns).
Styles GV94300 and GV94301 as individual garments, clearly
share characteristics and purpose with the exemplars to heading
6208, HTSUSA. As the court stated in Mast, 9 CIT 549, 552
(1985), (citing the court in United States v. Bruce Duncan Co.,
50 CCPA 43, 46 C.A.D. 817 (1963)), "the merchandise itself may be
strong evidence of use." Based upon an examination of these
garments, and the submitted advertisement labelling these
garments as "sleepwear", we are of the opinion that these
garments may be characterized as intimate apparel- garments that
are worn in the privacy of one's home. Accordingly, as sleepwear
separates, they remain sleepwear garments, but not pajamas.
HOLDING:
The sleepshirt, referenced style number GV1010, and the
chemise, referenced style number GV1011, are classifiable in
subheading 6208.29.0020, HTSUSA, which provides for inter alia,
women's or girls' nightdresses and pajamas, of other textile
materials, other: containing 70 percent or more by weight or silk
or silk waste. The applicable rate of duty is 7.5 percent ad
valorem and the quota category is 751.
When imported together in shipments containing equal numbers
(pairs) of matching tops and bottoms of styles GV94300 and
GV94301, the matching garments are classifiable in subheading
6208.29.0020, HTSUSA, which provides for inter alia, women's or
girls' nightdresses and pajamas, of other textile materials,
other: containing 70 percent or more by weight of silk or silk
waste. The applicable rate of duty is 7.5 percent ad valorem and
the quota category is 751.
When imported separately, or when imported without a
matching component, the tank top, referenced style number
GV94300, and the boxer short, referenced style number GV94301,
are classifiable in subheading 6208.99.6030, HTSUSA, which
provides for, inter alia, women's or girls' other sleepwear, of
other textile materials, of silk or silk waste, other: containing
70 percent or more by weight of silk or silk waste. The
applicable rate of duty is 7.5 percent ad valorem and the quota
category is 752.
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 negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report on Current Import Quotas (Restraint
Levels), an issuance of the U.S. Customs Service which is updated
weekly and is available at the 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, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division