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HQ 956202

September 29, 1994

CLA-2 CO:R:C:T 956202 CMR


TARIFF NO.: 6208.91.3010, 6208.21.0010

Eleanore Kelly-Kobayashi, Esq.
William Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Classification of certain sleepwear garments; mix and match pajamas; components sold separately

Dear Ms. Kelly-Kobayashi:

This is in response to your submission of April 29, 1994, on behalf of your client, Eddie Bauer, Inc., regarding the classification of certain sleepwear garments. The initial ruling request was submitted by your client on January 21, 1994, to the District Director of Customs in Seattle. The request was forwarded to this office for a response.


You have identified the merchandise at issue as a flannel nightshirt, style 7001 (item 5382/5403), a flannel pajama top, style 7003 (item 1121/1162), and a flannel pajama long bottom, style 7002 (item 1431/2469/5327). Each garment is constructed of the same 100 percent cotton flannel plaid fabric. The nightshirt has long sleeves with button cuffs, a round collar, and a partial front opening starting at the neck secured by six buttons. The garment extends to slightly above the knee in length with a rounded bottom with side vents and is designed to be loose fitting. It has the general appearance of a typical nightshirt. The sleepwear (pajama) top has long sleeves, a full front opening secured by four buttons, a pointed collar, a straight hemmed bottom with side vents, two patch pockets below the waist, and one breast patch pocket The garment extends to just below the hips and has the general appearance of a typical pajama top. The sleepwear (pajama) bottoms have an elasticized waistband, no fly, and the legs extend to the ankles. The pants are designed to be -2-
loose-fitting and have the general appearance of typical pajama bottoms.

It is submitted that these flannel garments were all designed, manufactured and will be marketed by Eddie Bauer as sleepwear garments. The garments will be marketed as part of the Eddie Bauer cotton flannel sleepwear group and the identical nightshirt, sleepwear (pajama) top and sleepwear (pajama) bottom will be available in three other flannel fabric prints--a fish print design, a ski print design, and a bright plaid design. The garments will appear in either the Eddie Bauer 1994 Fall catalogue or the 1994 Holiday catalogue. The garments will be sold separately as mix and match pajamas.

In a meeting at our offices on June 22, 1994, a member of your firm provided us with a copy of the planned artwork for styles 7001, 7002 and 7003 which will appear in the Eddie Bauer 1994 Fall catalogue. The planned artwork shows models wearing the styles at issue. The accompanying copy identifies the garments as "Print Pajama Separates" and further identifies style 7003 as "Print Pajama Top" and style 7002 as "Print Pajama Pants", each priced separately. Style 7001 is identified as a "Print Nightshirt". The copy describing styles 7002 and 7003 states, in part:

We've captured the spirit of the outdoors in a whimsical pattern of fish, fly hooks and fall leaves against a cream-colored background. Inspired by the comfort of menswear, our cotton-flannel top and pants feature a roomy fit you'll

Classification is being sought in subheading 6208.21.0010, HTSUSA, which provides for, among other things, women's cotton nightdresses and pajamas, with two or more colors in the warp and/or the filling.


Are the submitted garments classifiable in subheading 6208.21.00, HTSUSA, which provides for women's cotton nightdresses and pajamas; in subheading 6208.91.30, HTSUSA, as similar garments of cotton; or, are they classifiable as outerwear in the appropriate headings in Chapter 62?


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.

The nightshirt, style 7001, was the subject of PC 895998 of March 25, 1994, and was classified therein in subheading 6208.21.0010, HTSUSA. Based upon an examination of the sample garment, that classification determination is correct.

"Night clothes or nightdress" is defined in Mary Brooks Picken's The Fashion Dictionary, (1957), at 256, as: "Garments worn while in bed by men, women, children. On the same page, "nightgown or nightdress" is defined as: "Chemise type of garment, sleeved or sleeveless, with soft details, worn while in bed. During mid-20th century, sometimes made top-of-the-hip length." Webster's II New Riverside University Dictionary, (1984), at 794, defines "nightdress" as: "1. A nightgown. 2. Nightclothes." The Guidelines for the reporting of imported Products in Various Textile and Apparel Categories, CIE, 13/88, in addressing nightwear describes the term as including "various articles worn for sleeping, such as nightgowns, night-shirts, "waltz gowns," etc. Nightdress is defined in various sources as meaning a nightgown or nightclothes. Viewing the definitions of nightdress in conjunction with the guidance of the Category Guidelines, Customs interprets the term as used in the tariff to mean a type of nightgown.

On page 257 of The Fashion Dictionary, nightshirt is defined 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." Style 7001 is clearly a nightshirt and as such falls within the general definition of nightdresses.

Regarding styles 7002 and 7003, each garment is described as a pajama component, i.e., top and bottom. 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:

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 -5-
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. 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 (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.

As stated above, if the garments at issue, style 7003, sleepwear (pajama) tops, and style 7002, sleepwear (pajama) bottoms, 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 7003 and 7002 contains extra pieces of either style, those pieces may not be classified as pajamas. In these situations, i.e., imported without a matching top or bottom, the garments at issue, styles 7002 and 7003, may still be classifiable in heading 6208, HTSUSA, as articles similar to the articles specifically named in the heading. In deciding if the pajama tops and pajama 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 -7-
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 7002 and 7003 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 is of the opinion that styles 7002 and 7003, as individual articles, clearly share characteristics and purpose with the exemplars to heading 6208, HTSUSA. We believe styles 7002 and 7003 may be characterized as 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. Styles 7002 and 7003 are designed, marketed and advertised as sleepwear as evidenced by the artwork submitted at the June meeting. Most important however 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, when imported together, instead of separately, they would be recognized and classified as sleepwear pajamas. As separates, they remain sleepwear garments, but not pajamas.

A final argument has been made that although style 7003, the pajama top, may not be classified as a pajama if imported without -8-
style 7002, the pajama bottom, style 7003 should be considered a nightshirt when imported alone. Due to the oversized styling of the garment, it may be worn alone as a nightshirt and, in fact, the importer intends to import a greater number of style 7003 based upon an expectation that the garment will be purchased alone for that very use. Based upon an examination of the garment, we conclude that standing alone, style 7003 does meet the general definition of a nightshirt and it is reasonable to conclude it will be purchased and used as such.


When imported together in shipments containing matching equal numbers of styles 7002 and 7003, these garments 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 and dutiable at 9.5 percent ad valorem.

When imported separately, style 7002, the pajama bottoms, is classifiable, ejusdem generis, as a similar article in subheading 6208.91.3010, HTSUSA, it is 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.

When imported separately, style 7003, the pajama top, is classifiable in subheading 6208.21.0010, HTSUSA, which provides for nightdresses and pajamas, of cotton, with two or more colors in the warp and/or the filling. The nightshirt, style 7001, is also classifiable in subheading 6208.21.0010, HTSUSA, which provides for nightdresses and pajamas, of cotton, with two or more colors in the warp and/or the filling. Garments classified in this subheading are subject to a rate of duty of 9.5 percent ad valorem and fall with textile category 351. Style 7001 was correctly classified in PC 895998 of March 25, 1994.

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.


John Durant, Director
Commercial Rulings Division

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