HQ 082665: Request for reconsideration of New York ruling 827850

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                        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?











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             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












                                           -3-



             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.


















                                           -4-



             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















































             6cc:  Area Director of Customs
                   New York Seaport Area
             cc:   Legal Reference Section
             cc:   CITA
             cc:   NIS Eileen Crowley