CLA-2 RR:CR:TE 963371 jb
Ms. Regina Cross
Yusen Air & Sea Service (USA), Inc.
Hook Creek Boulevard & 145th Ave, Bldg. C-3
Valley Stream, NY 11581
RE: Classification of women's woven garments; components sold separately
Dear Ms. Cross:
This is in response to your letter dated June 21, 1999, on behalf of your client, Wacoal America Inc., requesting a classification ruling under the Harmonized Tariff Schedule of the United States (HTSUS) for certain women's woven garments. Samples were submitted to this office for examination.
FACTS:
The submitted samples are all made of 100 percent cotton woven fabric and are manufactured in the Philippines. The submitted samples are as follows:
1. a chemise, referenced style number 413026, featuring a loose-fitting style that extends approximately to the knee and has non-adjustable spaghetti straps and embroidered netting at the front neckline;
2. a short sleeved shirt, referenced style number 411016, featuring a notched collar, a full front opening secured by five buttons and a hemmed bottom;
3. a camisole type garment, referenced style number 432026, featuring non-adjustable spaghetti straps and embroidered netting at the front neckline. This garment is cut straight across the back edge from side seam to side seam;
You state that the subject garments are meant to be used as “pajamas/intimate apparel” and that they are sold as separates but intended to be worn as sets.
4. a boxer short, referenced style number 433024, featuring a fully elasticized covered waistband;
5. a boxer short, referenced style number 433026, featuring a fully elasticized covered waistband and embroidery at the hemline.
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, HTSUS, 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, HTSUS, 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 number 413026 is a type of garment often identified as a “nightshirt (nightdress)” or "chemise". In the The Fashion Dictionary by Mary Brooks Picken at 256, (1957) the terms “night clothes or nightdress” and “nightgown or nightdress” are defined as follows:
Night clothes or nightdress:
Garments worn while in bed by men, women, children.
Nightgown or nightdress:
Chemise type of garment, sleeved or sleeveless, with soft details, worn while in bed....
In the same source (page 257), the term “night shirt” is defined as:
Tailored nightgown for men or boys, usually just below the knee in length. Adopted by women in 1950's.
In Webster's II New Riverside University Dictionary at 794, (1984), “chemise” is defined as:
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 often used to describe various types of sleepwear garments. The use of these terms generally refers to the styling or cut of the garment as a simple, straight, loose hanging garment.
Aspects of the silhouette and styling of style number 413026 can be associated with sleepwear type garments, as for example, the light flimsy fabric, the non-adjustable spaghetti straps and slight flare at the bottom edge of the garment. This type of garment is 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, 1992; HQ 951184, dated June 19, 1992; and HQ 951182, dated June 18, 1992. As such, style number 413026 falls squarely within heading 6208, HTSUS.
The remaining garments consist of the short sleeved shirt (style number 411016), the camisole (style number 432026) and the two boxer shorts (style numbers 433024 and 433026). 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 equal or 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, HTSUS. 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, those extra pieces may not be classified as pajamas but may still be classifiable in heading 6208, HTSUS, 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, are shared by the specified exemplars in heading 6208, HTSUS. Heading 6208, HTSUS, 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 411016 (short sleeve shirt), 432026 (camisole), 433024 and 433026 (shorts) as individual garments, clearly share characteristics and purpose with the exemplars to heading 6208, HTSUS. 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, 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, and principally worn to bed. All of the garments are made of a light-weight material, (particularly in the case of the camisole and one of the shorts, the material is translucent) and feature a roomy cut and style which is appropriate for sleepwear garments. Accordingly, as sleepwear separates, they remain sleepwear garments, but not pajamas.
HOLDING:
The chemise, referenced style number 413026, is classifiable in subheading 6208.21.0020, HTSUSA, which provides for, women's or girls', singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: nightdresses and pajamas: of cotton: other: women’s. The applicable general column one rate of duty is 9.2 percent ad valorem and the quota category is 351.
When imported together in shipments containing equal numbers (pairs) of matching tops and bottoms of styles 411016 (short sleeved shirt), 433024 (shorts), 432026 (camisole) and 433026 (shorts), the matching garments are classifiable in subheading 6208.21.0020, HTSUSA, which provides for women's or girls', singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: nightdresses and pajamas: of cotton: other: women’s. The applicable general column one rate of duty is 9.2 percent ad valorem and the quota category is 351.
When imported separately, or when imported without a matching component, the short sleeved shirt, referenced style number 411016, the boxer short, referenced style number 433024, the camisole, referenced style number 432026, and the boxer short, referenced style number 433026, are classifiable in subheading 6208.91.3010, HTSUSA, which provides for, women's or girls', singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: other: of cotton: other: women’s. The applicable general column one rate of duty is 11.6 percent ad valorem and the quota category is 352.
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