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HQ 955823





October 4, 1994

CLA-2 CO:R:C:T 955823 CMR

CATEGORY: CLASSIFICATION

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.

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:

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.

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

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