HQ 956239

October 4, 1994

CLA-2 CO:R:C:T 956239 CMR

CATEGORY: Classification

TARIFF NO.: 6208.91.3010; 6208.21.0020

Ms. Ludene Murphree

The GAP, Inc.

Two Harrison Street

San Francisco, CA. 94105

RE: Classification of a women\'s woven stripe pajama separates;

boxer style sleep bottom, style #727171; long sleep pant,

style \# 727160; sleep shirt, style #727159; pajama components

sold separately; similar articles; heading 6208, HTSUSA

Dear Ms. Murphree:

This is in response to your request of January 21, 1994, for

a classification ruling on a women\'s boxer style sleep bottom,

supplemented by your request of June 28, 1994, for classification

of the matching sleep shirt and long sleep pant. Sample garments

were submitted with your request to Customs. Your supplemental

submission of June 28th included sample garments, garment

specification sheets and information regarding how the garments

will be marketed and sold at retail.

FACTS:

Style 727171, is a women\'s woven stripe boxer style short.

Style 727160 is a women\'s woven stripe long pant. Style 727159 is

a women\'s woven stripe shirt. All of the garments are made of the

same 100 percent cotton, lightweight, somewhat sheer, woven striped

fabric.

Style 727171 has a 7/8-inch self-fabric tubular elasticized

waist with a same fabric drawstring for tightening. Small lace

trim is sewn around the leg openings. Style 727160 has a 3/4 to

7/8-inch self-fabric tubular elasticized waist with a same fabric

drawstring for tightening. The pant legs extend to the ankles and

have a simple straight hem. Style 727159 has long sleeves, a

slight v-shaped neckline, no collar, a full-front opening secured

by four large flat buttons, two patch pockets at or below the

waist, a straight hemmed bottom and eight-inch side vents. The

garments will be sized XS-L and will be produced in Hong Kong for

sale in the United States in Banana Republic stores. -2-

The garments will be displayed together on hangers in the

underwear or intimate apparel section of Banana Republic stores

and will be sold separately. In your June 28th letter, you

referred to these garments as matching pajama pieces and stated

they are intended to be worn for sleep. The reason for offering

the garments as separates is to give women the choice of purchasing

a long or short leg pajama bottom and a pajama top.

Your samples will be returned, as requested, under separate

cover.

ISSUE:

Are the submitted garments classifiable in subheading

6208.21.00, HTSUSA, which provides for women\'s cotton nightdresses

and pajamas; or, are they classifiable in subheading 6208.91.30,

HTSUSA, as similar garments of cotton; or, are they classifiable

as outerwear in the appropriate headings in Chapter 62?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the

General Rules of Interpretation (GRIs). GRI 1 provides that

\"classification shall be determined according to the terms of the

headings and any relative section or chapter notes and, provided

such headings or notes do not otherwise require, according to \[the

remaining GRIs taken in order\].\"

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 describe the scope

of heading 6208, 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 Explanatory Notes are not legally binding, but do represent

the official interpretation of the Harmonized System at the

international level.

In HRL 088635 of May 24, 1991, and 089367 of July 31, 1991,

Customs addressed the issue of the meaning of the term \"pajamas\"

for tariff purposes. Each ruling cited various definitions of

pajamas, including:

-3-

Essential Terms of Fashion: A Collection of Definitions,

published by Fairchild, defines pajamas, at 128, as: \"one or

two-piece item of apparel originally designed for

sleeping\...\".

The American Heritage Dictionary, Second College Edition, at

page 893, \"A loose-fitting garment consisting of trousers and

a jacket, worn for sleeping or lounging.\"

Webster\'s II New Riverside University Dictionary, (1984), at

845, \"A loose-fitting garment having of (sic) trousers and a

jacket, worn for sleeping or lounging.\"

The rulings also referred to The Guidelines for the Reporting of

Imported Products in Various Textile and Apparel Categories, CIE

13/88, published by Customs in the December 28, 1988, Federal

Register, at pages 52563-52570, wherein pajamas are described as

being worn by both sexes and all ages, and\...:

\...consist\[ing\] of an upper part, pullover or coat style, with

long, short, or no sleeves and a lower part, short,

intermediate, or long trouser-like garments or of any style

panties. \* \* \* Pajamas are sleepwear. Garments called

\"sleepers\" (sometimes called Dr. Denton\'s), one or two-piece

knit sleeping garments for girls\', sizes 2-4 and boys\' 2-7,

buttoning in front or back and with drop seats in the one-

piece style, are in this category. (at page 52569)

In both HRL 088635 and 089367, Customs concluded that no

support could be found for the proposition that the common

meaning of the term pajamas included the individual components of

a pajama set standing alone. Thus, pajama bottoms imported without

their matching pajama tops are not classifiable as pajamas. The

same holds true for the opposite case.

However, 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, 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 numbers

of matching tops and bottoms.

A review of the historical treatment of pajamas is helpful to

consider at this point. Historically under the previous tariff,

pajamas (tops and bottoms) were classified as a unit based upon the

doctrine of entireties. The doctrine of entireties no longer has

application to garments under the HTSUSA

due to Note 13, Section XI, which requires separate classification

of garments, \"unless the context otherwise requires\". Pajamas fall

within the exempt language of Note 13. -4-

In a recent ruling, HRL 956492 of September 19, 1994, Customs

discussed the rationale for classification of pajamas as composite

goods. In that ruling, Customs stated:

Based on the definition of composite goods cited above,

the common meaning of pajamas and the historical

classification treatment of pajamas, this office views pajamas

as composite goods. The pajama components that make up the

pajamas at issue are adapted to each other and are mutually

complementary as required by the definition of composite

goods. \* \* \*

\* \* \*

\* \* \* in addition, the pajamas meet the third requirement

of the definition of composite goods in that they form a whole

(pajamas) which would not normally be offered for sale in

separate parts. Normally, pajamas are sold as a top and

bottom unit.

Classification based upon the doctrine of condition as

imported is a basic tenet of tariff classification. See, Donalds

Ltd., Inc. v. United States, 32 Cust. Ct. 310, 314, C.D. 1619

(1954). In addition, as the court stated in Donalds at 314:

\* \* \* 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 shirts and

sleepwear 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 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.

As stated above, if the garments at issue, style 727159,

sleepwear shirt; style 727171, sleepwear boxer shorts; and style

727160, sleepwear long pant, are imported separately, they cannot

be classified as pajamas as they fail to meet the common and

commercially understood definition of pajamas, in their condition

as imported. In addition, if a shipment of styles 727159, 727171

and 727160 contains extra pieces, e.g., more bottoms than shirts, -5-

those extra pieces may not be classified as pajamas. In these

situations, i.e., imported without a matching top or bottom, the

garments at issue, styles 727159, 727171 and 727160, may still be

classifiable in heading 6208, HTSUSA, as articles similar to the

articles specifically named in the heading. In deciding if the

sleepwear shirts and sleepwear bottoms imported as individual

articles are classifiable in heading 6208, HTSUSA, we refer to 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:

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, and decide if styles 727171,

727160 and 727159 possess those same characteristics or purposes.

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 cited earlier

describes the coverage of heading 6208 as including women\'s or

girls\' underclothing and, after naming the last five exemplars,

\"garments usually worn indoors\".

Customs believes that styles 727171, 727160 and 727159 are

\"of the same kind, class, or nature\" as the exemplars to heading

6208, HTSUSA. We believe these garments may be characterized as -6-

intimate apparel. They are garments that would not be worn outside

the home and, when worn, would be worn only in the presence of

family or close friends. The garments also share a purpose with

certain of the exemplars of heading 6208, HTSUSA. They are sold

as sleepwear garments in the underwear or sleepwear section of

stores. However, most important are the garments themselves. As

the court stated in Mast, 9 CIT 549, 552 (1985), \"the merchandise

itself may be strong evidence of use.\" Citing United States v.

Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). Based upon

an examination of these garments, their fabric, styling and

construction make it obvious that if they were sold together,

instead of separately, they would clearly be recognized as

sleepwear pajamas. As separates, they remain sleepwear garments,

but not pajamas.

HOLDING:

When imported together in shipments containing equal numbers

(pairs) of matching shirts and bottoms of styles 727159, 727160

and 727171, the matching garments are classified as women\'s woven

cotton pajamas in subheading 6208.21.0020, HTSUSA, textile category

351 and dutiable at 9.5 percent ad valorem.

When imported separately, or when imported without a matching

component, styles 727159, 727160 and 727171 are classifiable,

ejusdem generis, as similar articles in subheading 6208.91.3010,

HTSUSA. They are of the same class or kind, as the exemplars of

heading 6208, HTSUSA. Garments classifiable in this subheading are

subject to a rate of duty of 11.9 percent ad valorem and fall

within textile category 352.

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.

-7-

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