CLA-2 CO:R:C:T 955823 CMR
TARIFF NO: 6208.91.3010
Mr. Hank Shechtman
J. Crew Group Incorporated
22 Lincoln Place
Garfield, New Jersey 07026
RE: Supersession of Pre-classification ruling 882003 of
February 9, 1993; Classification of women's sleepwear bottoms
Dear Mr. Shechtman:
In PC 882003 of February 9, 1993, Customs classified three
styles of women's sleepwear bottoms in subheading 6208.21.00,
HTSUSA, which provides for cotton nightdresses and pajamas.
While Customs believes that the garments were correctly viewed as
sleepwear garments, classification in the subheading for
nightdresses and pajamas was incorrect based upon the language of
the subheading. For this reason and as further explained below,
Customs is superseding PC 882003.
FACTS:
The garments at issue in PC 882003 are described in the
listing attached to PC 882003 as follows:
Style 79011--women's solid draw string pajama bottom of 100
percent cotton, yarn dyed solid; to be shown with S/81031
pajama top;
Style 78551--women's boxer short pajama bottom of 100
percent cotton, poplin construction; to be shown as intimate
apparel; can be worn with 78541;
Style 78971--women's short pajama bottom of 100 percent
cotton, yarn dyed strip, drawstring waist; to be shown with
S/78981 pajama top.
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ISSUE:
What is the proper classification of a sleepwear bottom
garment for women?
LAW AND ANALYSIS:
The classification of garments known as sleep bottoms,
originally regarded as garments sold strictly to men, presented
the question of whether a single garment, i.e., a bottom, could
be classified in the provision for pajamas.
Early in 1991, three rulings, HRL 088101 of February 26,
1991, HRL 088192 of February 20, 1991 and NYRL 862500 of April
29, 1991, were issued classifying sleepwear bottoms in the
provision for pajamas. Subsequently that year, the issue was
revisited in HRL 088635 of May 24, 1991. That ruling determined
that while Customs recognizes the existence of one-piece pajamas
(garments which provide full or almost full body coverage), sleep
bottoms could not be considered pajamas, i.e., pajama bottoms, in
the absence of pajama tops, are not pajamas. HRL 088101 was
later modified by HRL 089367 of July 31, 1991. Numerous rulings
have been issued following the same reasoning of HRL 088635.
See, HRL 089361 of July 30, 1991; HRL 089306 of July 15, 1991;
HRL 089052 of July 12, 1991 and HRL 089357 of July 11, 1991.
Though the above cited rulings, with the exception of HRL
088192 and NYRL 862500, all deal with men's garments, the
determination regarding the proper classification of sleep bottom
garments applies to both men's and women's garments. In HRL
950323 of January 6, 1992, Customs addressed the classification
of a garment described as women's tap pants and classified in a
pre-classification ruling as sleepwear. The ruling did not
question that the garment was sleepwear, but merely addressed the
issue of a statistical breakout change. The ruling classified
the garment in subheading 6208.92.0030, HTSUSA, which provides
for, inter alia, women's or girls' garments of man-made fibers,
similar to nightdresses and pajamas. So while the garment was
considered sleepwear, it was not classifiable in the provision
for pajamas, but in the provision for other similar articles.
That is also the provision in which the garments at issue in PC
882003 are classified.
The rationale for classification of the garments at issue in
heading 6208, HTSUSA, as similar to nightdresses and pajamas lies
in the rule of statutory construction known as ejusdem generis.
In Van Dale Industries v. United States, Slip Op. 94-54, (decided
April 1, 1994), in discussing ejusdem generis, the court stated:
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One rule of statutory construction is ejusdem generis,
which means "of the same kind, class, or nature." Black's
Law Dictionary 464 (5th ed. 1979). This rule applies
"whenever a doubt arises as to whether a given article not
specifically named in the statute is to be placed in a class
of which some of the individual subjects are named."
[United States v. Damrak Trading Co., Inc., 43 CCPA 77, 79,
C.A.D. 611 (1956).] Under ejusdem generis, where particular
words of description are followed by general terms, the
latter will be regarded as referring to things of a like
class with those particularly described. Id. In other
words, ejusdem generis requires that merchandise possess the
particular characteristics or purposes that unite the
specified exemplars in order to be classified under the
general terms. See, Nissho-Iwasi Am. Corp. v. United States,
10 CIT 154, 157, 641 F. Supp. 808, 810 (1986) (citations
omitted).
Heading 6208, HTSUSA, specifically provides for women's and
girls' singlets and other undershirts, slips, petticoats, briefs,
panties, nightdresses, pajamas, negligees, bathrobes, dressing
gowns and similar articles. To apply ejusdem generis, we must
ascertain the shared characteristics or purposes of the named
garments in heading 6208, HTSUSA.
All of the articles named in heading 6208, HTSUSA, may be
characterized as "intimate apparel". They are garments which are
recognized as either underwear (the singlets and other
undershirts, slips, petticoats, briefs and panties), sleepwear
(the nightdresses, pajamas and negligees), or garments normally
worn indoors in the presence of family or close friends (the
negligees, bathrobes and dressing gowns). The explanatory note
for heading 6208 describes the scope of the heading as including
women's or girls' underclothing and, after naming the last five
exemplars, "garments usually worn indoors". While the
explanatory notes contained in the Harmonized Commodity
Description and Coding System Explanatory Notes are not legally
binding, they do represent the international interpretation of
the Harmonized System and provide guidance in determining the
scope of the various headings.
In issuing PC 882003, it is clear that Customs believed the
garments classified therein were sleepwear and as such were of
the same class, kind or nature as the exemplars to heading 6208,
HTSUSA. This supersession is necessary to correct the subheading
classification. As the garments were treated as separates, and
presented to Customs as garments that will not be entered and
sold as a unit with coordinating upper body garments, the
garments are not classifiable as pajamas, but are classifiable as
similar garments of heading 6208, HTSUSA.
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HOLDING:
PC 882003 is hereby superseded to reflect classification of
the garments at issue therein in the provision for other similar
articles of heading 6208, of cotton, in subheading 6208.91.3010,
HTSUSA, textile category 352, dutiable at 11.9 percent ad
valorem. This ruling is effective 60 days from the date of this
letter.
The designated textile and apparel category may be
subdivided into parts. If so, the 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
changes, to obtain the most current information available, we
suggest 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 updated weekly and
is available for inspection at your 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, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division