HQ 958385: Classification of sleepwear top

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 958385

October 26, 1995                 

CLA-2  R:C:T  958385  jb

CATEGORY:  Classification

TARIFF NO.:  6207.91.3010

Miguel Ruiz
Miami International Forwarders
P.O. Box 523730
Miami, FL. 33152-3730

RE:  Classification of sleepwear top

Dear Mr. Ruiz:

     This is in reply to your letter dated July 27, 1995,
concerning the classification of a men's woven cotton flannel top
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).  A sample was submitted to this office for
examination.

FACTS:

     The subject garment, referenced style number 72009T, is a
men's woven cotton flannel top made in Turkey, featuring a
notched shirt type collar, a full frontal opening with button
closures, hemmed long sleeves, a locker loop on the back panel
with a "Tommy Hilfiger" label, and a chest pocket with an
embroidered crest and a green buttonhole.    

     This garment will be sold in stores on racks that are
especially designed for Tommy Hilfiger products in the sleepwear
departments.  The importer claims that this garment is sold to be
worn only to bed and that the garment will be sold in stores as
part of the sleepwear separates line.  At this time there is no
advertising material available.  The top will be sold to the
consumer with a hangtag which indicates TOMMY sleepwear HILFIGER.

     The importer additionally requires information regarding
whether the presence of the subject top with sleepwear shorts and
pants would require their classification as a pajama set.

ISSUE:

     What is the proper classification for the subject
merchandise?
LAW AND ANALYSIS:

     Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI).  GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes.  Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in the order of their
appearance.

     In HQ 088635, dated May 24, 1991, and HQ 089367, dated July
31, 1991, Customs addressed the issue of the meaning of the term
"pajamas" for tariff purposes.  Those rulings cited various
definitions of pajamas, including:

     Essential Terms of Fashion: A Collection of Definitions,
published by Fairchild, at 128,
     defines pajamas as, "one or two piece item of apparel
originally designed for sleeping..."

     The American Heritage Dictionary, Second College Edition, at
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 Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories (Guidelines), CIE 13/88,
dated November 23, 1988, define pajamas as:

     Pajamas are worn by both sexes and all ages.  They consist
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
                                   any style panties.  The lower
                                   part sometimes encloses the
                                   feet.  Pajamas are
                                   sleepwear...

     In both HQ 088635 and HQ 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
without their matching pajama tops are not classifiable as
pajamas; the same holds true for the opposite case.

     In reaching a decision on the classification of "pajamas" we
examine how they will be imported.  If garments are imported in
shipments of tops or bottoms only, they cannot be classified as
pajamas.  However, if the garments are imported in shipments
consisting of equal numbers of matchings tops and bottoms, a
different issue presents itself.  In HQ 956492, dated September
19, 1994, Customs discussed the rationale for classification of
pajamas as composite goods:




     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.

     As was stipulated in Donalds Ltd., v. United States, 32
Cust. Ct. 310, 314, C.D. 1619 (1954), classification based upon
the doctrine of condition as imported is a basic tenet of tariff
classification.  As the court stated in Donalds:

     *   *   * in determining the proper classification applied
to imported articles, the actual   nature of the article of
                                   commerce, or commercial
                                   entity, involved must be taken
                                   as the determinant.  

Thus, based upon the condition at the time of importation,
shipments of equal number of matching sleepwear shirts and
sleepwear 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. 
Accordingly, garments in such shipments will be classified as
pajamas.  In using the term "matching" Customs makes reference to
design, style, coloring and 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.

     It thus follows that if the subject flannel top is imported
separately, it cannot be classified as a pajama as it fails to
meet the common and commercially understood definition of pajama,
in its condition as imported.  The top is classifiable in heading
6207, HTSUSA, as an article similar to the articles specifically
named in the heading.  In deciding if the sleepwear top imported
as an individual garment is classifiable in heading 6207, 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), 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).

     To apply ejusdem generis , we must ascertain the shared
characteristics of the named garments in heading 6207, HTSUSA,
and compare them to the submitted garment.  All of the garments
named in heading 6207, HTSUSA, may be characterized as "intimate
apparel" .  They are garments which are recognized as either
underwear or garments worn indoors in the presence of family or
close friends.   This office is of the opinion that the submitted
men's cotton top is of the "same kind, class or nature" as the
exemplars to heading 6207, HTSUSA.  The subject garment is a
garment designed to be worn indoors .  It is sold as a sleepwear
garment in the sleepwear section of stores.  Accordingly, based
upon examination of the garment, its fabric, styling and
construction it is obvious that if the subject men's cotton top
were sold together with sleepwear bottoms, instead of separately,
they would be recognized as sleepwear pajamas.  As a separate, it
remains a sleepwear garment, but not pajamas.

HOLDING:

     The subject men's cotton top, referenced style number
72009T, is properly classified in subheading 6207.91.3010,
HTSUSA, which provides for, among other things, nightshirts and
pajamas: other: of cotton: other; sleepwear.  The applicable rate
of duty is 6.5 percent ad valorem and the quota category is 351.

     The designated textile and apparel category may be
subdivided into parts.  If so, 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 negotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available 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 importing the merchandise to determine
the current status of any import restraints or requirements.


                              Sincerely,



                              John Durant, Director
                              Tariff Classification Appeals
Division