CLA-2-62:RR:NC:WA 360 A81955

Ms. Suzanne B. Barnett

Grunfeld, Desiderio, Lebowitz & Silverman LLP

245 Park Ave

New York, NY 10167-4000

RE: The tariff classification of women's sleepwear components from Hong Kong; components sold separately; shipped and entered in equal and/or unequal amounts

Dear Ms. Barnett:

In your letters dated March 25, 1996 and April 2, 1996, you requested a classification ruling on behalf of Richard Leeds International, Inc. The samples submitted with your request will be returned to you under separate cover.

Three groupings of women's fully coordinated, mix and match sleep components were submitted with your request, as well as, a one-piece sleep garment. You state that the garments will be priced separately but will be imported in equal quantities in the same shipment or will be imported separately or in unequal numbers. You have submitted additional sizing specifications, design, hang tags and labels, and marketing information to support your claim as sleepwear.

Styles 61608T (61608TX, extra large size) and 61608B (61608X, extra large size) are women's pajama components consisting of knit and woven fabric. Style 61608T (61608TX) is a long sleeved, pullover top. The front and rear panels of the top are constructed from 60% cotton and 40% polyester thermal knit fabric and the sleeves are made from 100% cotton woven flannel fabric. The garment features a two button opening at the neck, rib knit fabric at the wrists and vents at the bottom of each side that are approximately 2 1/2 inches long. The flannel fabric of the sleeves is identical to the fabric comprising the bottom component. Style 61608B is a 100% cotton woven flannel short pajama bottom. The pull-on shorts feature a drawstring waist, two side pockets, rib knit trim at leg openings and three non-functional buttons simulating a fly front.

Styles 61628T (61628TX, extra large size) and 61628B are women's pajama components consisting of knit and woven fabric. Style 61628T is a long sleeved, pullover top made from 60% cotton and 40% polyester thermal knit fabric. The garment features rib knit fabric at the wrists and neck, a cross-over V neckline with a decorative plaid flannel bow and vents at the bottom of each side that are approximately 2 1/2 inches long. Style 61628B is a 100% cotton woven flannel pajama bottom. The garment features a drawstring waist, two side pockets, and rib knit fabric at the ankles.

Style 61618 consists of a matching top and bottom made from 60% cotton and 40% polyester thermal knit fabric which you have indicated will also be priced and sold separately. The long sleeved, pullover top features ribknit fabric at the wrists and rounded neckline and vents on either side of the bottom that are approximately 3 inches long. The long pajama bottom has an elasticized waistband, rib knit fabric at the ankle and a rear patch pocket.

Style 61641 (61641X, extra large size) is a one-piece pajama. The body of the garment is made from 100% cotton woven flannel fabric while the sleeves are constructed from 60% cotton and 40% polyester thermal knit fabric with flannel cuffs. The long sleeved garment extends from the shoulder to the ankle and features a V-shaped neckline, a five (5) button partial front opening, long, hemmed legs, and two front patch pockets with waffle knit trim.

There are two classification issues involved: Whether the mix and match components are classifiable as pajamas under either heading 6108/6208 and how components consisting of knit and woven separates are classified.

Customs has determined that individual components of a pajama set standing alone are not considered to be pajamas for tariff purposes. That is to say, pajama tops imported without their matching pajama bottoms are not classifiable as pajamas.

However, 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 under heading 6108, HTSUSA, if knit, or heading 6208, HTSUSA if woven. 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.

Furthermore, in Customs ruling, HQ 956492, dated September 19, 1994, it was determined that pajamas are to be treated as composite goods. The rationale given was that the components are adapted to each other, are mutually complementary, and they form a whole which would not normally be offered for sale in separate parts.

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 headings 6108/6208, HTSUSA, under the rule of ejusdem generis, i.e., as articles similar to the articles specifically named in the heading.

Women's pajamas are classified in either heading 6108, HTSUSA, or heading 6208, HTSUSA, depending on whether the pajamas are classified as knit or woven. In this case, the pajamas at issue are both, i.e., the top is knit, the bottom is woven. Thus, following GRI 3(a), headings 6108, HTSUSA, and 6208, HTSUSA, are equally specific and we must look to GRI 3(b).

In determining which component imparts the essential character in this case, we must keep in mind the definition of pajamas. In order to be pajamas, there must be a top garment and a bottom garment. Without either garment, the pajamas do not exist. Therefore, each component is equally important to the creation of the whole, i.e., the pajamas. As each is equally essential, classification must be based upon GRI 3(c) which requires classification under the heading which occurs last in numerical order of the headings which merit equal consideration. As the pajamas may be classified under headings 6108, HTSUSA, based upon the knit cotton top, or 6208, HTSUSA, based upon the woven cotton bottoms, and heading 6208, HTSUSA, appears last in numerical order, that is the heading under which the pajamas are classified.

When imported together in shipments containing equal numbers (pairs) of matching tops and bottoms styles 61608 and 61628 are classifiable in subheading 6208.21.0010, HTSUSA, which provides for inter alia, women's or girls' nightdresses and pajamas, of cotton: with two or more colors in the warp and/or the filling. The applicable rate of duty is 9.4 percent ad valorem and the textile category is 351.

When imported separately, or when imported without a matching component, styles 61608T, 61628T and 61618 (top or bottom) are classifiable in subheading 6108.91.0030, HTSUSA, which provides for, inter alia, women's or girls' other sleepwear, knitted, of cotton. The applicable rate of duty is 8.9 percent ad valorem and the textile category is 350.

When imported separately, or when imported without a matching component, styles 61608B and 61628B (bottoms) are classifiable in subheading 6208.91.3010, HTSUSA, which provides for, inter alia, women's or girls' other sleepwear, of cotton. The applicable rate of duty is 11.8% ad valorem and the textile category is 352.

When imported together in shipments containing equal numbers of matching tops and bottoms style 61618 is classifiable under subheading 6108.31.0010, HTSUSA, which provides for women's or girls' pajamas, knitted, of cotton. The applicable rate of duty is 8.9% ad valorem and the textile category is 351.

Style 61641 is classifiable under subheading 6208.21.0010, HTSUSA, which provides for for inter alia, women's or girls' nightdresses and pajamas, of cotton: with two or more colors in the warp and/or the filling. The applicable rate of duty is 9.4 percent ad valorem and the textile category is 351.

Based upon international textile trade agreements products of Hong Kong are subject to quota restraints and a visa requirement.

The designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. 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 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.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Patricia Schiazzano at (212) 466 - 5866.

Sincerely,

Roger J. Silvestri

Director

National Commodity

Specialist Division