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HQ 958717




February 4, 1997

CLA-2 RR:TC:TE 958717 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.21.0010

Beth C. Ring, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, NY 10022-1106

RE: Revocation of NY 811323; Pajamas; subheading 6208.21.0010; T-shirts; subheading 6109.10.0070; shorts; subheading 6204.62.4055; Revocation of NY 811323

Dear Ms. Ring:

This is in reply to Diane Weinberg's letter of November 21, 1995, on behalf of your firm's client, Inner World, requesting reconsideration of NY 811323, dated July 7, 1995. In that ruling the garments in question are classified under subheading 6109.10.0070 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), (knitted T-shirts and similar cotton garments for women) and subheading 6204.62.4055, HTSUSA, (women's cotton shorts). You seek classification of these garments under subheading 6208.21.0010, HTSUSA, which provides for women's pajamas. You submitted a sample of the garments to aid us in our determination.

Pursuant to section 625(c)(1) of the Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of NY 811323 was published on January 2, 1997, in the Customs Bulletin, Volume30/31, No. 52/1.

FACTS:

The merchandise under consideration is women's pajamas, style 6745/4745, comprised of a T-shirt styled knit top and a pair of woven flannel boxer shorts. The T-shirt is constructed from 60 percent cotton and 40 percent polyester jersey knit fabric. The body of the shirt is a solid color and features a contrasting colored neckband, a chest pocket, and a shirttail bottom with edging. The patch pocket and bottom edging match the fabric in the shorts. The shorts are constructed from one hundred percent cotton woven fabric with a plaid design formed by two or more colored yarns. They also feature an elasticized waistband.

In NY 811323, dated July 7, 1995, Customs classified the top as a garment similar to a T-shirt in subheading 6109.10.0070. The bottom was classified as shorts in subheading 6204.62.4055. You argue that the garments should be classified together as pajamas under subheading 6208.21.0010, because they are used principally as sleepwear.

ISSUE:

Whether the garments in question are classified separately as a T-shirt and shorts or as pajamas under subheading 6208.21.0010?

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.

Heading 6208, HTSUSA, provides, in part, for women's or girls' nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles.

The underwear and sleepwear provision of the tariff schedule are eo nomine by use provisions. Headquarters Ruling Letter (HQ) 089790, dated June 23, 1991. That is, merchandise is classifiable under the appropriate provision if it is used as sleepwear or as underwear. In this regard, Additional U.S. Rule of Interpretation 1(a) provides that "a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." Principal use is that use which exceeds each other single use. HQ 089790, dated June 23, 1991.

Your primary contention is that the garments in question are classified as pajamas in subheading 6208.21.0010, because they belong to a class or kind of merchandise that is principally used, made, marketed and sold as women's sleepwear. In support of your claim, you state that the garments have the physical characteristics of merchandise designed to be worn for sleeping (i.e., they are loose fitting, manufactured from lightweight fabrics, do not have pockets, and are sized small, medium or large). Additionally, you state that the garments move in a channel of trade which sells sleepwear, that they are designed, manufactured and imported as sleepwear, and that the importer only manufactures, distributes or sells merchandise to intimate apparel buyers.

In determining the classification of garments submitted to be sleepwear, Customs considers the factors discussed in two Court of International Trade decisions, which you cite in your request for reconsideration. In Mast Industries, Inc., v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144, the court cited several lexicographic sources which defined "nightclothes" as "garments to be worn to bed." The court further held that since the garment at issue (a garment claimed to be sleepwear) was designed, manufactured, and used as nightwear it was, therefore, classifiable as nightwear. Id. at 553. Similarly, in St. Eve International v. United States, 11 CIT 224 (1987), the court ruled that since the garments in that case were manufactured, marketed and advertised as nightwear and were chiefly used as nightwear, they should be so classified. See, HQ 088192, dated February 20, 1991 (merchandise is viewed in the commercial arena in determining principal use).

In the instant case, Customs verified the importer's claims that the garments are ordered, invoiced and purchased as sleepwear and ultimately sold as such. Accordingly, we find that the principal use of the garments is sleepwear/pajamas.

Next, we must determine under which heading to classify the pajamas. Note 13, Section XI, states: "Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale." However, Customs has held that pajamas consisting of a top and bottom which together create a unit are an exception to Note 13, subject to the language "unless the context otherwise requires." HQ 956492, dated September 19, 1994. Pajama components entered together are, therefore, classified together under the appropriate pajama provision.

Women's pajamas are classified in either heading 6108 or heading 6208, depending on whether they are knit or woven. In this case, the pajama top is knit and the bottom is woven. Therefore, following GRI 3(a), headings 6108 and 6208 are equally specific and we must look to GRI 3(b), which provides:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Two piece pajamas are composite goods. HQ 956492, dated September 19, 1994, and HQ 956202, dated September 29, 1994. Composite goods are goods that consist of two or more components and which are treated as a unit for tariff purposes. In pajama cases, in the absence of unusual circumstances, the top and bottom garment are equally essential and, therefore, classification must be based upon GRI 3(c) which requires classification under the heading which
occurs last in numerical order of the headings which merit equal consideration. As the pajamas may be classified under heading 6108, based upon the knit top, or heading 6208, based upon the woven bottoms, and heading 6208 appears last in numerical order, that is the heading under which the pajamas are classified. See, HQ 956492, dated September 19, 1994.

HOLDING:

The classification of women's pajamas, style number 6745/4745, is under subheading 6208.21.0010, HTSUSA, which provides for "Women's or girls'... pajamas ... and similar articles: Nightdresses and pajamas: Of cotton ... With two or more colors in the warp and/or the filling ..." These items are dutiable at the column one general rate of 9.3 percent ad valorem and the textile category is 351.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10 (c)(1)).

Sincerely,

John Durant, Director
Tariff Classification Appeals

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