CLA-2 RR:TC:TE 960523 jb
Patrick D. Gill, Esq.
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Classification of women's woven sleepwear separates; mix and
match sleepwear garments; consolidation of two ruling
requests
Dear Mr. Gill and Ms. Kobayashi:
This is in response to your letters of April 1997, on behalf
of your client, Hampton Industries, requesting a classification
ruling under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) for certain women's woven sleepwear. Samples
were submitted to this office for examination.
FACTS:
The submitted garments consist of nine samples
representative of three groups of 100 percent cotton women's
flannel plaid garments. The first group consists of three
matching garments, i.e., top, pants and shorts. The second group
consists of two matching garments, i.e., a top and a pant.
Finally, the third group of garments consist of a matching top,
pants and shorts, and another pant. You state in your submission
that these items are sold separately so that the customer has the
option of buying a different size or different style top and
bottom, depending on the needs and taste of the individual. No
advertising material was submitted to this office. However, in
support of the claim that these are sleepwear garments, you
submitted letters from the buyers of this merchandise, major
retailers (Kohl's, Ross Stores, Atkins, Kmart, Target, Hill
Stores) in which the sleepwear buyers confirm that these garments
are being purchased and will be marketed and displayed in the
sleepwear/pajama departments as garments to be worn to bed.
All of the garments are designed to have a loose, comfortable
fit.
Although style numbers were not submitted for these garments, the
hang tags do identify the following numbers:
Bottoms
1322K, 0770, 0770B
long hemmed pant featuring: side pockets, covered
elasticized waist, tunnel with drawstring closure;
these pants are also available with an internal
drawstring
114-7206, 114-7412, 7118D, 7118S, 0670S, 0670
short pant featuring: covered elasticized waist with
internal drawstring closure, mock fly with two buttons,
one side pocket
7018D
long pant featuring: elasticized ankles, side pockets,
elasticized waist with internal drawstring closure;
these pants are also available with rib knit cuffs
7018E, 1317K, 0771
long pant featuring: ribbed knit fabrics at the ankles,
exposed contrasting colored elastic waistband, two side
pockets
117-2725, 117-2733
long pant featuring: ribbed knit fabric at the ankles,
covered elasticized waistband, two side pockets
7118E
short pant featuring: one side pocket, contrasting
colored exposed elastic waistband
* You state that all of the pajama bottoms are available
with either one or two side seam pockets.
Tops
1545, 0471
long shirt approximately 39 inches in length and
features: banded collar, long hemmed sleeves, full
front opening with eight button closure, a left chest
pocket, shirttail bottom, corduroy sweat patch on the
inside of the back panel and corduroy locker loop on
the back panel
0470, 7026
long shirt approximately 38 inches in length and
features: pointed collar, long hemmed sleeves, full
front opening with seven button closure, hidden
placket, two large chest pockets, and shirttail bottom
117-2741, 117-2758, 7081, 7081S, 0472S, 0472
long shirt approximately 38 inches in length and
features: pointed collar, long hemmed sleeves, full
front opening with seven
button closure, rear yoke
and locker loop, two
patch chest pockets with
button flaps, and rounded
bottom
ISSUE:
What is the proper classification for these garments when
sold separately and when imported together with matching tops and
bottoms, or imported separately?
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).
The garments identified by the hangtags as 1545, 0471, 0470,
7026, 117-2741, 117-2758, 7081, 7081S, 0472S, and 0472 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)
These definitions illustrate that the term "nightshirt" is
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 1545, 0471, 0470,
7026, 117-2741, 117-2758, 7081, 7081S, 0472S, and 0472 can be
associated with sleepwear type garments, as for example features
such as the full front button opening, the shirttail or rounded
bottom, and the loose and ample sizing of the garments. 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, these
"nightshirts" fall squarely within heading 6208, HTSUSA.
The remaining garments consist of the long pants (1322K,
0770, 0770B, 7018D, 7018E, 1317K, 0771, 117-2725, 117-2733) and
the short pant (114-7206, 114-7412, 7118D, 7118S, 0670S, 0670,
7118E). 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 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, or the subject garments are imported
separately, 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, the
remaining bottoms, 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).
The submitted bottoms 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 both the physical characteristics
of these garments, and the submitted documentation from the major
buyers and retailers of this merchandise labeling 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. Particularly, features as the loose cut
and design of the pants, and in some cases, the ribbed knit cuffs
or elasticized cuffs at the legs, indicate that these are
sleepwear garments. Accordingly, as sleepwear separates, they
remain sleepwear garments, but not pajamas. However, as we have
already discussed, when imported together with matching tops and
bottoms, they are classified as pajamas. This is consistent with
past Customs rulings which have classified virtually identical
sleepwear separates in heading 6208. See, e.g., HQ 956755, dated
November 10, 1994, and HQ 957757, dated April 11, 1995.
HOLDING:
When imported separately or without a matching bottom
component, the nightshirts, referenced numbers 1545, 0471, 0470,
7026, 117-2741, 117-2758, 7081, 7081S, 0472S, and 0472, are
classifiable in subheading 6208.21.0010, HTSUSA, which provides
for inter alia, woven nightdresses and pajamas, of cotton, with
two or more colors in the warp and/or the filling. The
applicable rate of duty is 9.3 percent ad valorem and the quota
category is 351.
When imported separately or without a matching top
component, the bottoms, referenced numbers 1322K, 0770, 0770B,
114-7206, 114-7412, 7118D, 7118S, 0670S, 0670, 7018D, 7018E,
1317K, 0771, 117-2725, 117-2733, and 7118E, are classifiable,
ejusdem generis, as similar articles in subheading 6208.91.3010,
HTSUSA. Garments classifiable in this subheading are subject to
a rate of duty of 11.7 percent ad valorem and the quota category
is 352.
When imported together in shipments containing equal numbers
(pairs) of matching tops and bottoms of the above referenced
numbers ( 1545, 0471, 0470, 7026, 117-2741, 117-2758, 7081,
7081S, 0472S, 0472, 1322K, 0770, 0770B, 114-7206, 114-7412,
7118D, 7118S, 06070S, 0670, 7018D, 7018E, 1317K, 0771, 117-2725,
117-2733, and 7118E), the matching garments are classifiable in
subheading 6208.21.0010, HTSUSA, which provides for inter alia,
women's cotton pajamas with two or more colors in the warp and/or
filling. The applicable rate of duty is 9.3 percent ad valorem
and the quota category is 351.
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
Tariff Classification
Appeals Division