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HQ 082665


January 26, 1989

CLA-2 CO:R:C:G 082665 SM 082256 SM 827850

CATEGORY: CLASSIFICATION

TARIFF NO: HTSUS 6208

John B. Pellegrini, Esq.
Ross and Hardies
529 Fifth Avenue
New York, NY 10017-4608

RE: Request for reconsideration of New York ruling 827850

Dear Mr. Pellegrini:

Your letter of August 10, 1988, was submitted on behalf of Associated Merchandising Corporation (AMC), in support of their May 4 request for reconsideration of New York ruling 827850 of April 15. You also appeared with a representative of AMC at a meeting at Customs Headquarters on January 11.

FACTS:

In file 827850, six styles of women's garments, 198, 199, 707, 1605, 1707, and 5106, were variously classified as shirts, trousers, and components of an ensemble. Samples were submitted along with this request for reconsideration. With the exception of Style 5106, which is of a woven cotton fabric, all are of polyester satin.

Your position is that all are classifiable under heading 6208, Harmonized Tariff Schedule of the United States Anno- tated (HTSUSA), a provision including women's nightdresses and pajamas and similar articles. Your letter and that of AMC state that AMC member stores have purchased the merchandise as sleepwear, and you include copies of purchase orders showing nightwear department numbers. You have also provided state- ments from several of the stores indicating that the merchan- dise will be displayed and sold only in their nightwear de- partments. You also state that the merchandise was designed and intended for use as nightwear, and you enclose a brief statement from the manufacturer to that effect. You have also provided advertising copy for similar merchandise indicating that it is marketed as nightwear.

ISSUE:

Are the six styles classifiable as shirts and trousers or as nightdresses, pajamas, and similar articles?

LAW AND ANALYSIS:

Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section and chapter notes.

Heading 6208, HTSUSA, provides, both by its terms and as set out in the Explanatory Notes, the official interpretation of the HTSUSA at the international level, for two groups of articles. One is certain women's underclothing. The other includes nightdresses, pajamas, negliges, bathrobes and beach- robes, and similar articles for women and girls. The notes state that garments of the latter group are usually worn in- doors; beachrobes constitute an obvious exception.

The Revised Textile Category Guidelines, C.I.E. 13/88, reflect the many past Customs Service decisions to classify as pajamas and other nightwear those garments worn to bed for sleeping. T.D. 87-118 reiterated Customs' position that nightwear is sleepwear, and that garments advertised and sold as dresses, shirts, trousers, beachrobes, or other nonsleep articles are not classifiable as nightwear. This position is consistent with the judgment in Mast Industries v. United States, 9 CIT 549 (1985), aff'd, 786 F. 2d 1144 (Fed. Cir. 1986), that nightclothes are garments to be worn to bed, and that the garment in question, found to to be designed, manu- factured, marketed, and used as nightwear, was so classifi- able. We find no inconsistency in applying these same prin- ciples to classification of pajamas, nightdresses, and simi- lar garments under the HTSUSA.

Many garments are clearly and indisputably nightwear; they generally do not come before Customs for rulings because there is no doubt as to their tariff classification. Diffi- culties arise when garments claimed to be nightwear resemble dresses, shirts, trousers, or other garments intended to be worn not in the privacy of the bedroom but for public view. The more closely an importer's merchandise resembles these outerwear garments in color, style, and fabric, the more dif- ficulty he will have, obviously, in establishing for Customs officials that that merchandise is sleepwear.

The difficulty, moreover, is not merely that the styles themselves are ambiguous; the environment of sale is equally so. Examination of the trade press indicates that sleepwear/ intimate apparel departments of stores have sought to boost
their sales by offering a variety of clothes in addition to sleepwear and underwear. Visits to the stores themselves reveal that this is indeed the case. Thus, an importer's claim that his merchandise is sold in a sleepwear department cannot be conclusive of its classification. In many cases, garments sold in these departments are indistinguishable from those sold elsewhere.

In determining whether a particular garment is to be worn to bed for sleeping, Customs will consider the sample it- self and whatever information the importer can supply about how the garment is to be marketed and sold. We must also con- sider how the same or virtually the same article is advertised and sold by others. In some cases we receive samples of the same merchandise from different importers requesting different classifications. With regard to documentation in support of a claimed classification, letters of credit, purchase orders, contracts, confirmations, and other documentation incidental to the purchase of the merchandise cannot be regarded as con- clusive. These documents can be self-serving and do not necessarily reflect how merchandise is advertised in the U.S. market.

With regard to the submitted satin samples, there is considerable advertising for similar shirts and trousers, in both silk and synthetic fabrics, as shirts and trousers. Sometimes they are sold as separate pieces, and sometimes they are sold together, in the manner of pajamas. Thus, while such garments are sometimes advertised as pajamas and nightshirts, as AMC has pointed out, they are also advertised as "versatile shirts," "shirts," "free-floating shirt," "radiant brights for at home or out," "over slacks, with a skirt, or in bed . . . the perfect choice," "lounging and relaxing" clothes, and gar- ments "perfect for festive occasions at home or out on the town." They are shown being worn with beads, earrings and high-heeled shoes, and are clearly marketed as shirts and trousers. Thus, they are commonly marketed as other than sleepwear. Consumers will take them where they find them.

With regard to Style 5106, no particular evidence has been presented that persuades us to revoke the decision of the New York Region.

HOLDING:

File 827850 is affirmed. However, it appears that the rate of duty for the shirt component of Style 1707 was mis- stated. The rate is 28.6 percent.

Sincerely,

John Durant, Director
Commercial Rulings Division

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