HQ 081272: Tariff classification of certain women's shirts and pants

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 081272

                                     August 16, 1988



             CLA-2 CO:R:C:G  081272  SM

             CATEGORY:  Classification

             TARIFF NO.:  6206.30.3010; 6204.62.4055; 6204.62.4020

             Donna L. Shira, Esq.
             Sharretts, Paley, Carter & Blauvelt, P.C.
             80 Broad Street
             New York, NY  10004

             RE:  Tariff classification of certain women's shirts and pants

             Dear Ms. Shira:

                   Your letter of October 28, 1987, on behalf of Carter
             Hawley Hale Stores, requests a tariff classification ruling
             for three styles of women's garments to be imported from
             India.

             FACTS:

                   Samples of all three styles were submitted.  All are of
             a 100 percent cotton woven fabric.  Style C-1061 consists of
             two pieces.  The top is a collarless shirt with a full-front
             six-button opening, short sleeves, a single patch pocket on
             the left side, a back yoke, and a slightly rounded shirttail.
             The trousers have an elasticized waist with a functional
             drawstring, a pocket in each side seam, and no closure.  A
             band of fabric that matches the shirt is stitched around the
             lower edge of each leg.  Style C-1060 is virtually identical
             except that it has a second pocket inside the patch pocket of
             the shirt, and shorts instead of trousers with no contrasting
             fabric at the lower edge.  Style C-1062 is a shirt like that
             of Style C-1060 but longer, with a back length of approxi-
             mately 36 inches.

                   Your position is that all three styles should be classi-
             fied as pajamas and other nightwear.  You state that the fol-
             lowing facts compel this classification:  the garments are of
             100 percent cotton; they have flat buttons; the elasticized
             waists of the pants have drawstrings that allow adjustment for
             a loose fit for sleeping and a snugger fit for lounging; the
             oversized fit makes the garments suitable for sleeping and
             lounging but inappropriate for outdoor wear; the garments were
             ordered by sleepwear/intimate apparel departments to be mar-
             keted as sleepwear, as evidenced by the proposed catalog in-
             serts.











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             ISSUE:

                   Whether the garments are classifiable as pajamas and
             other nightwear, and if not, how they are classified.

             LAW AND ANALYSIS:

                   The Revised Textile Category Guidelines, C.I.E. 6/87,
             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 the Service's position that
             nightwear is sleepwear and that garments advertised and sold
             as dresses, shirts, beach cover-ups, or other nonsleep arti-
             cles are not classifiable as nightwear.  This position is con-
             sistent 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 gar-
             ment in question, found to be designed, manufactured, market-
             ed, and used as nightwear, was so classifiable.  It parallels
             the decision in Children's Hose, Inc. v. United States, 55
             Cust. Ct. 6 (1965), in which the court held that underwear is
             garments of an intimate nature, not seen, not for public expo-
             sure, and that a garment partially visible when worn could not
             be classified as underwear.  Neither sleepwear nor underwear
             is to be worn in public.

                   Many garments are clearly and undisputably 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, pants, 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 outer-
             wear garments in color, style, and fabric, the more difficulty
             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 comfortable clothes,
             sometimes called "leisure wear," in addition to sleepwear and
             underwear.  Visits to the stores themselves reveal that this
             is indeed the case.  The Customs Service has even received
             letters from importers asking that their merchandise be clas-
             sified as "leisure wear," although the Tariff Schedules of the














                                           -3-


             United States contain no such provision.  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
             itself and whatever information the importer can supply about
             how the garment is to be marketed.  We must also consider how
             the same or virtually the same article is advertised and sold
             by others.

                   With regard to the submitted samples, neither the gar-
             ments themselves nor the supporting materials persuade us that
             classification as pajamas and other nightwear is correct.  The
             samples have the appearance of ordinary shirts, trousers, and
             shorts.  The welt pockets in the side seams of the trousers
             and shorts have the finished look of outerwear garments.  The
             fact that the garments are of cotton and have flat buttons in
             no way compels their classification as nightwear.  Neither
             does the fact that they are somewhat oversized; this look is
             currently popular in a variety of garments.  Many trousers and
             shorts have the elasticized drawstring waist feature and con-
             trasting fabric strips on the cuff area.  The proposed catalog
             inserts purporting to show that the merchandise will be sold
             as sleepwear do not in fact show the styles in question.

             HOLDING:

                   Style C-1062 and the tops of Styles C-1060 and C-1061
             are classified under item 384.4608, TSUSA, textile category
             341, as women's cotton blouses, not ornamented, not knit.  The
             bottoms of Style C-1060 are classified under item 384.4724,
             TSUSA, textile category 348, as women's cotton shorts, not
             ornamented, not knit.  The bottoms of Style C-1061 are classi-
             fied under item 384.4765, TSUSA, textile category 348, as
             women's cotton trousers, not ornamented, not knit.

                   The Harmonized Tariff Schedule of the United States
             (HTSUSA) is scheduled to replace the TSUSA.  The HTSUSA pro-
             visions applicable to the above-described merchandise are the
             following.  Style C-1062 and the tops of styles C-1060 and C-
             1061 are classified under subheading 6206.30.3010, HTSUSA,
             textile category 341, a provision for women's cotton blouses,
             not knitted or crocheted.  The bottoms of Style C-1060 are
             classified under subheading 6204.62.4055, HTSUSA, textile
             category 348, a provision for women's cotton shorts, not













                                           -4-


             knitted or crocheted.  The bottoms of Style C-1061 are
             classified under subheading 6204.62.4020, HTSUSA, textile
             category 348, a provision for women's cotton trousers, not
             knitted or crocheted.

                   This classification represents the present position of
             the Customs Service under the proposed HTSUSA.  If there are
             changes before enactment, this advice may not continue to be
             applicable.

                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division







































             cc:  CITA
             cc:  NIS Eileen Crowley
             SMurphy:jaj:7/20/88