HQ 956755

November 10, 1994

CLA-2 CO:R:C:T 956755 CMR

CATEGORY: Classification

TARIFF NO.: 6208.21.0010, 6208.21.0020, 6208.91.3010,

6212.10.2010

James Marino, Esq.

Neville, Peterson & Williams

80 Broad Street

Suite 3400

New York, New York 10004

RE: Classification of certain sleepwear separates; consolidation

of four ruling requests; mix and match sleepwear garments

Dear Mr. Marino:

This ruling is in response to your requests of June 1994, on

behalf of your client, J. Crew Group, Inc., seeking the

classification of certain women\'s garments submitted to be

sleepwear. For purposes of simplification, we have consolidated

your four requests in this ruling. Samples were received by this

office. You have requested the withdrawal of four garments from

classification consideration on the basis that J. Crew is not the

importer of record for these goods and thus does not require

rulings on their classification.

FACTS:

Nineteen garments originally were at issue. Customs is

allowing withdrawal of four styles as requested. We will not

address the classification for styles 42361, 42331, 42351, and

42341 which were part of your ruling request submitted by letter

of June 22, 1994. The remaining fifteen garments are claimed to

be women\'s sleepwear garments with classification sought in

heading 6208, HTSUSA, as women\'s nightdresses, pajamas, and other

sleepwear. It is claimed the garments will be marketed with

other garments as a line of sleepwear for the 1994 fall season.

No advertising material was submitted and when sought, Customs

was informed none was available at this time. Specification

sheets to show that the styles are intended to be sold as a

single line and as sleepwear were submitted. The garments will

be sized as women\'s small, medium and large. The majority of the

garments are designed to have a loose, comfortable fit.

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The first four styles described below are constructed from

100 percent cotton yarn dyed tartan plaid flannel woven fabric.

The garments will be manufactured in Portugal.

Style 81181\--identified as a pajama top. The garment has

long sleeves hemmed at the wrist opening; a full front

opening secured by four buttons (right over left closure); a

shirt collar; and, a straight, hemmed bottom. It is

somewhat oversized. The garment is to be marketed and sold

with matching bottoms, style 81201.

Style 81201\--identified as a tartan pajama pant. The

garment is a pair of long pants with a simple drawstring

waist and two side seam pockets. It will be marketed and

sold with style 81181 (pajama top).

Style 28961\--identified as a pullover nightshirt. The

garment is a pullover with a round neckline featuring a

drawstring tie at the neck and a six-inch front opening from

the neckline. The garment has long sleeves with one-inch

cuffs with single button closures, no pockets, a straight

hemmed bottom, side slits and an overall length of 36 inches

(size medium). The garment is generously cut in an

oversized fashion.

Style 5174\--identified as a bold tartan nightshirt. The

garment is a pullover featuring a partial front opening with

a four-button closure (right over left), a slightly U-shaped

neckline, a shirttail style hemmed bottom, no pockets, long

sleeves hemmed at the wrist (no cuffs), and an overall

length of 36 inches (size small). The garment is generously

cut in an oversized fashion.

The next sample will be constructed of 100 percent cotton

yarn dyed flannel woven fabric. The garment will be manufactured

in Hong Kong and/or Portugal.

Style 31601\--identified as a 100 percent cotton tartan

flannel pajama bottom short. The garment has a self-fabric

covered 3/4-inch elasticized waistband. It has a basic

shorts design and has no fly and no pockets. It will be

marketed with style 81181, pajama top.

The next five samples will be made of 100 percent cotton

woven flannel fabric. The garments will be manufactured in

Portugal.

Style 28951\--identified as a 100 percent cotton woven yarn-

dyed plaid flannel pajama top. The garment has long sleeves

which are hemmed at the wrist (no cuffs), a notched collar,

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a full front opening secured by four buttons (right over

left closure), and a straight hemmed bottom. The garment

has an oversized appearance.

Style 4044\--identified as a royal blue flannel 100 percent

cotton pajama top. The garment has long sleeves which are

hemmed at the wrist (no cuffs), a shirt style collar, a

partial front opening secured by five buttons (right over

left closure), two breast pockets, five-inch side slits, and

a straight hemmed bottom. The garment has an oversized

appearance and features yellow contrasting stitching at the

seams. The garment will be marketed with style 2014.

Style 2014\--identified as a royal blue flannel pajama

bottom. The garment is a pair of long pants with an

elasticized tunnel waistband with a drawstring. The garment

has two rear patch pockets, a wide leg design, and yellow

contrasting stitching at the seams. The garment will be

marketed with style 4044.

Style 2024\--identified as a royal blue flannel pajama bottom

short. The garment is a pair of shorts with an elasticized

waistband and two rear patch pockets. The garment is

designed to be somewhat oversized. It features yellow

contrasting stitching at the seams and four rows of yellow

contrasting stitching at the hem of the legs. It will be

marketed with style 1984, pajama top.

Style 2034\--identified as a pajama romper. The sample is

royal blue flannel. Customs considers this garment to be

properly identified as a jumpsuit as the pants portion of

the garment reaches to the ankles. Rompers are similar

garments, however, they are above the knee in length. The

one-piece garment extends from the neck to the ankles. It

has long hemmed sleeves (no cuffs), a seamed high waistline,

two breast pockets, a shirt collar, and a front opening

secured by six buttons (right over left closure). The

garment is designed for a loose fit and features yellow

contrasting stitching at the seams.

The next five samples are made of 100 percent cotton yarn-

dyed flannel woven fabric, except style 24791 which is a solid

colored flannel. All the garments will be manufactured in

Portugal.

Style 81211\--identified as a tartan flannel 100 percent

cotton draw string short. The garment is a pair of shorts

with a 3/4-inch elasticized waistband with a drawstring.

The shorts have two side seam pockets and hemmed leg

bottoms. The garment is designed for a loose fit and will

be marketed with style 9924.

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Style 9924\--identified as a tartan flannel 100 percent

cotton cropped pajama top. The garment has long hemmed

sleeves (no cuffs), a full front opening secured by five

buttons (right over left closure), a shirt collar, a left

breast pocket, and a straight hemmed bottom. The garment is

designed for a loose fit and will be marketed with style

81211\.

Style 29111\--identified as a tartan flannel draw string

waist romper. Customs considers this garment a jumpsuit.

The garment extends from the neck to the ankles and has long

hemmed sleeves (no cuffs), an elasticized drawstring waist,

two side seam pockets, a round neckline (no collar), and a

front opening secured by six buttons (right over left

closure).

Style 24791 is an underwire brassiere made with 100 percent

cotton flannel woven fabric. The garment features

adjustable straps and an adjustable back closure (three sets

of double hook and eye closures). The submitted sample is

red flannel with black capping along the top of the cups and

a small black ribbon bow in the center front. The brassiere

is coordinated with style 28071 (panty).

Style 28071 is a 100 percent cotton tartan flannel panty.

The panty has an elasticized waist, elasticized leg

openings, and a double-ply crotch.

ISSUE:

How are the submitted garments classified?

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

\[the remaining GRIs taken in order\].\"

It is submitted that these garments are women\'s garments.

Note 8, Chapter 62, states:

Garments of this chapter designed for left over right

closure at the front shall be regarded as men\'s or boys\'

garments, and those designed for right over left closure at

the front as women\'s or girls\' garments. These provisions

do not apply where the cut of the garment clearly indicates

that it is designed for one or other of the sexes.

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Garments which cannot be identified as either men\'s or boys\'

or as women\'s or girls\' garments are to be classified in the

headings covering women\'s or girls\' garments.

The submitted garments with front closures have closures

that are right over left, thus per Note 8 above, these garments

are women\'s. As to the garments without front closures, we

believe the cut of the garments sufficiently indicate that the

garments are designed for women.

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 determining the classification of garments submitted to

be sleepwear, Customs considers the factors discussed in two

decisions of the Court of International Trade which are often

cited when discussing sleepwear. In Mast Industries, Inc. v.

United States, 9 CIT 549, 552 (1985), aff\'d 786 F.2d 1144 (CAFC,

April 1, 1986) the Court of International Trade dealt with the

classification of a garment claimed to be sleepwear. The court

cited several lexicographic sources, among them Webster\'s Third

New International Dictionary\'s which defined \"nightclothes\" as

\"garments to be worn to bed.\" In Mast, the court determined that

the garment at issue therein was designed, manufactured, and used

as nightwear and therefore was classifiable as nightwear.

Similarly, in St. Eve International, Inc. v. United States, 11

CIT 224 (1987), the court ruled the garments at issue therein

were manufactured, marketed and advertised as nightwear and were

chiefly used as nightwear.

In past rulings, Customs has stated that the crucial factor

in the classification of a garment is the garment itself. As the

court pointed out in Mast, \"the merchandise itself may be strong

evidence of use.\" Mast at 552, citing United States v. Bruce

Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when

presented with a garment which is somewhat ambiguous and not

clearly recognizable as sleepwear or underwear or outerwear,

Customs will consider other factors such as environment of sale,

advertising and marketing, recognition in the trade of virtually

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identical merchandise, and documentation incidental to the

purchase and sale of the merchandise, such as purchase orders,

invoices, and other internal documentation. It should be noted

that Customs considers these factors in totality and no single

factor is determinative of classification as each of these

factors viewed alone may be flawed. For instance, Customs

recognizes that internal documentation and descriptions on

invoices may be self-serving as was noted by the court in

Regaliti, Inc. v. United States, Slip-Op. 92-80. We have long

acknowledged that intimate apparel/sleepwear departments often

sell a variety of merchandise besides intimate apparel, including

garments intended to be worn as outerwear. See, HRL 955341 of

May 12, 1994 and rulings cited therein; HRL 952105 of July 1992;

HRL 085672 of October 29, 1989; and HRL 955088 of December 14,

1993\. With these points in mind, Customs has reviewed your claim

that these garments are classifiable as sleepwear.

Our decision on the classification of these garments is

based largely on the garments themselves, i.e., their fabrication

and design. The only support for classification as sleepwear

presented to us beyond the claim of sleepwear and the garments

themselves were the specification sheets. While not valueless,

the specification sheets are not highly persuasive by themselves.

Mary Brooks Picken\'s The Fashion Dictionary, (1957), at page

257, defines nightshirt as a \"tailored nightgown\". The court in

Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985),

aff\'d 786 F. 2d 1144 (1986), citing Webster\'s Third New

International Dictionary, (1981), at 1528, found the definition

of \"nightshirt\" was \"a nightgown resembling a shirt.\" Styles

28961 and 5174 are clearly nightshirts and as such are

classifiable under the provision for nightdresses and pajamas

within heading 6208, HTSUSA.

Styles 81181, 9924, 4044 and 28951 are identified as pajama

tops. With the exception of style 28951, you have indicated that

these garments are marketed with matching style bottoms. As to

style 28951, based upon an examination of the garment, Customs

accepts that this is a pajama top. Styles 81201, 81211, 2014,

2024, 42341 and 31601 are identified as pajama bottoms. You

indicate in your submission that styles 81201, 81211, 2014, 2024

and 31601 are marketed with matching style tops. Based upon an

examination of these garments, Customs agrees that they are

designed, marketed and sold as sleepwear and will be principally

used as such. The National Import Specialist who specializes in

women\'s woven sleepwear believes the generous cut, wide leg

designs, fabrication, etc., are indicative of sleepwear garments

and this office agrees.

In your submission, you indicate that the pajama top and

pajama bottom styles listed above will be presented as sleepwear

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separates in order to allow the purchaser to mix and match tops

and bottoms. Customs has issued recent rulings on similar mix

and match merchandise. In HRL 956202 of September 29, 1994, and

HRL 956239 of October 4, 1994, Customs looked at the historical

treatment of pajamas as a unit and the classification of mix and

match pajama separates based upon their condition as imported.

In that regard, Customs stated in HRL 956202:

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 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.

If imported separately (shipments of only tops or only

bottoms) or if imported as extra components without a matching

top or bottom in a shipment, sleepwear separates cannot be

classified as pajamas because they fail to meet the common and

commercially understood definition of pajamas in their condition

as imported. See, HRL 956202, HRL 956239, 088635 of May 24,

1991, and HRL 089367 of July 31, 1991.

Sleepwear separates, i.e., pajama tops and pajama bottoms

imported as individual articles, are classifiable in heading

6208, HTSUSA, based upon the rule of statutory construction known

as ejusdem generis. Ejusdem generis means \"of the same kind,

class, or nature.\" Provided the sleepwear separates at issue

possess the same characteristics or purposes as the named

garments in heading 6208, HTSUSA, they may be classified therein

as similar garments. See, HRL 956202.

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. 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

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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 is of the opinion that styles 81181, 9924, 4044,

28951, 81201, 81211, 2014, 2024, and 31601, as individual

articles, clearly share characteristics and purpose with the

exemplars to heading 6208, HTSUSA. We believe these garments may

be characterized as intimate apparel. They are designed,

marketed and sold as sleepwear garments and as such they would

not normally be worn outside the home and, when worn, would be

worn only in the presence of family or close friends. Based upon

an examination of these garments, when imported together (tops

with matching bottoms), instead of separately, these garments

would be recognized and classified as sleepwear pajamas. As

separates, they remain sleepwear garments, but not pajamas.

Styles 29111 and 2034 are flannel jumpsuits. The National

Import Specialist agrees with your claim these garments are

sleepwear. The fabric and roominess of the design tend to

support the claim of sleepwear. We agree. In addition, the

marketing of the garments as sleepwear, as part of a sleepwear

line, gives support to the claim the garments are sleepwear and

will be principally used as such. As sleepwear, styles 29111 and

2034 are classifiable within the provision for nightdresses and

pajamas in heading 6208, HTSUSA. Pajamas includes not only

commonly thought of traditional two-piece garment, but also one-

piece garments which cover the torso. See, HRL 088635 and HRL

089367\.

As to style 28071, the flannel panty, and style 24791, the

flannel underwire brassiere, Customs does not agree that these

garments are sleepwear. However, we also believe we need not

argue their use in order to determine their classification.

Brassieres are provided for eo nomine in heading 6212,

HTSUSA. \"\[A\]n eo nomine statutory designation of an article,

without limitations or a shown contrary legislative intent,

judicial decision, or administrative practice to the contrary,

and without proof of commercial designation, will include all

forms of said article.\" Nootka Packing Co. et.al. v. United

States, 22 CCPA 464, 470, T.D. 47464 (1935). The Explanatory

Notes to the Harmonized Commodity and Coding System, the official

interpretation of the tariff at the international level, provide

in part that heading 6212 includes, inter alia, \"Brassieres of

all kinds.\" There is no use distinction or limitation for

classification of brassieres in heading 6212. Therefore, style

24791, a brassiere, is classified in heading 6212.

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Likewise, \"panties\" are provided for, eo nomine, in heading

6208, HTSUSA. The flannel panty, style 28071, is thus classified

in heading 6208, HTSUSA. It is not classifiable in the

subheadings for slips and petticoats or, nightdresses and

pajamas, as it is not one of these garments. The remaining

subheading is \"other\". This is the provision within which the

flannel panty is classified.

HOLDING:

Styles 28961 and 5174 are nightshirts classified in the

provision for woven nightdresses and pajamas, of cotton, with

two or more colors in the warp and/or the filling, in subheading

6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5

percent ad valorem.

Style 29111 is a sleepwear jumpsuit classified in the

provision for woven nightdresses and pajamas, of cotton, with

two or more colors in the warp and/or the filling, in subheading

6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5

percent ad valorem.

Style 2034 is a sleepwear jumpsuit classified in the

provision for woven nightdresses and pajamas, of cotton, other,

in subheading 6208.21.0020, HTSUSA, textile category 351,

dutiable at 9.5 percent ad valorem.

Style 28071, a flannel panty, is classified in the provision

for other woven cotton garments, in subheading 6208.91.3010,

HTSUSA, textile category 352, dutiable at 11.9 percent ad

valorem.

Style 24791, a flannel brassiere, is classified as a cotton

brassiere, not containing lace, net or embroidery, in subheading

6212.10.2010, HTSUSA, textile category 349, dutiable at 18

percent ad valorem.

Styles 81181, 9924, 28951, 81201, 81211, and 31601, when

imported in shipments containing matching equal numbers of tops

and bottoms, are classified as women\'s cotton pajamas with two or

more colors in the warp and/or filling in subheading

6208.21.0010, HTSUSA, textile category 351, dutiable at 9.5

percent ad valorem. Styles 4044, 2014, and 2024, when imported

in shipments containing matching equal numbers of tops and

bottoms, are classified as women\'s other cotton pajamas in

subheading 6208.21.0020, HTSUSA, textile category 351, dutiable

at 9.5 percent ad valorem.

When imported separately, or when imported without a

matching component, styles 81181, 9924, 28951, 81201, 81211,

31601, 4044, 2014, and 2024 are classifiable, ejusdem generis, as

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similar articles in subheading 6208.91.3010, 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.

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