Tariff Classification of Sleepwear Separates

DEPARTMENT OF THE TREASURY

Customs Service

Tariff Classification of Sleepwear Separates

AGENCY: Customs Service, Treasury.

ACTION: Notice of proposed change of inconsistent tariff classification

rulings of sleepwear separates.

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SUMMARY: This notice advises the public that Customs proposes to modify

inconsistent rulings on garments known as pajama or sleepwear separates

which do not conform with Customs position on the proper classification

of such garments. Customs Headquarters has issued rulings that women's

woven cotton pajama or sleepwear separates, when imported without a

matching component (thus precluding classification as pajamas), are

classified as similar articles and remain within heading 6208 of the

Harmonized Tariff Schedule of the United States (HTSUS). Heading 6208,

HTSUS, provides for women's or girls' singlets and other undershirts,

slips, petticoats, briefs, panties, nightdresses, pajamas, negligees,

bathrobes, dressing gowns and similar articles. It has come to Customs

attention that prior to issuance of these rulings a limited number of

rulings were issued on similar garments referred to as pajama bottoms,

sleep bottoms or sleep shorts. In these earlier rulings, the garments

ruled upon were classified in the provision for women's or girls'

pajamas. This was an error. Due to the likelihood that Customs

Headquarters may not be aware of all rulings issued on such garments,

notice is hereby being given via the Federal Register of our intent to

modify these inconsistent rulings to conform with our view with respect

to classification of the garments, not as pajamas, but as similar

articles. Before modification of these rulings, consideration will be

given to any written comments timely submitted in response to

publication of this notice.

DATES: Comments must be received on or before September 18, 1995.

ADDRESSES: Written comments are to be addressed to U.S. Customs

Service, Office of Regulations and Rulings, Attention: Commercial

Rulings Division, 1301 Constitution Avenue, NW., (Franklin Court),

Washington, DC 20229. Comments submitted may be inspected at the

Commercial Rulings Division, Office of Regulations and Rulings, located

at Franklin Court, 1099 14th Street, NW., Suite 4000, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Cynthia Reese, Textile Classification

Branch (202-482-7050).

SUPPLEMENTARY INFORMATION:

Background

This notice advises the public that Customs proposes to modify

inconsistent rulings on garments known as pajama or sleepwear separates

which do not conform with Customs current views on the proper

classification of such garments. Customs Headquarters issued a ruling

on the classification of certain women's sleepwear separates, HRL

956202 of September 29, 1994. In that ruling, Customs ruled that

women's woven cotton pajama or sleepwear separates, when imported

without a matching component (thus precluding classification as

pajamas), are classified as similar articles and remain within heading

6208 of the Harmonized Tariff Schedule of the United States (HTSUS).

Heading 6208, HTSUS, provides for women's or girls' singlets and other

undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas,

negligees, bathrobes, dressing gowns and similar articles. As similar

articles, the pajama/sleepwear separates were classified in subheading

6208.91.3010, Harmonized Tariff Schedule of the United States Annotated

(HTSUSA).

Rulings issued since HRL 956202 have followed the classification

arguments stated therein. It has come to Customs attention that prior

to issuance of this ruling a limited number of rulings were issued on

similar garments referred to as pajama bottoms, sleep bottoms or sleep

shorts. In these earlier rulings, the garments ruled upon were

classified in the provision for women's or girls' pajamas. This was an

error. Due to the likelihood that Customs Headquarters may not be aware

of all rulings issued on such garments, notice is hereby being given

via the Federal Register of our intent to modify these rulings to

reflect classification of the garments, not as pajamas, but as similar

articles. Before the change becomes effective, consideration will be

given to any written comments timely submitted in response to

publication of this notice.

In Headquarters Ruling Letter 088192 issued on February 20, 1991,

and New York Ruling Letter 862500 of April 29, 1991, a pair of ladies'

boxer-style shorts, style 53035, were classified in subheading

6208.22.0000, HTSUSA, which provides for women's or girls' nightdresses

and pajamas of man-made fibers. Style 53035 was constructed of a woven

polyester satiny fabric. In NYRL 885168 of May 17, 1993, Customs

classified a pair of boxer-type shorts of 100 percent woven polyester

charmeuse as sleepwear in subheading 6208.22.0000, HTSUSA. In DD 889242

of August 27, 1993, Customs classified a women's woven cotton pajama

pant in subheading 6208.21.0020, HTSUSA, and, in NYRL 890570 of October

20, 1993, (amended by supplemental letter of October 28, 1993) Customs

classified five styles of women's woven boxer-styled sleep shorts (all

sold with a coordinating upper body garment) in subheadings

6208.21.0010, HTSUSA and 6208.21.0020, HTSUSA. Customs Headquarters

believes the conclusions in these rulings that the garments at issue

therein would be principally used as sleepwear and should be classified

as such are correct. These are rulings which Customs is able to

identify and intends to modify to conform with HRL 956202. The error in

the rulings was not

[[Page 43184]]

the conclusion that the garments were sleepwear, but the classification

of the garments at the subheading level in the provision for pajamas.

Any other Customs ruling on virtually identical merchandise in which

the goods were classified in the provision for pajamas are also subject

to this notice.

In order to be classified in the provision for nightdresses and

pajamas, a garment must be one of the named articles. In Headquarters

Ruling Letter 088635 of May 24, 1991, the meaning of the term

``pajamas'' was examined and it was determined that the common meaning

of the term required top and bottom garments and that ``pajama

bottoms'' or sleep bottoms without pajama tops are not classifiable as

pajamas.

It follows that the women's sleepwear bottoms which were the

subject of the previously cited rulings cannot be classified in the

provision for nightdresses and pajamas. Although not classifiable as

pajamas, these garments may be classified as ``other similar articles''

in the ``other'' provision of heading 6208, HTSUS.

The rationale for classification of the garments at issue in

heading 6208, HTSUS, as similar to nightdresses and pajamas lies in the

rule of statutory construction known as ejusdem generis. In Van Dale

Industries versus United States, Slip Op. 94-54, (April 1, 1994), in

discussing ejusdem generis, the Court of International Trade 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 versus 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. versus United States, 10 CIT 154, 157, 641 F.

Supp. 808, 810 (1986) (citations omitted).

Heading 6208, HTSUS, 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, Customs must ascertain the shared

characteristics or purposes of the named garments in heading 6208,

HTSUS.

All of the articles named in heading 6208, HTSUS, 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 for heading 6208 describes the

scope of the heading as including women's or girls' underclothing and,

after naming the last five exemplars, ``garments usually worn

indoors''. While the explanatory notes contained in the Harmonized

Commodity Description and Coding System Explanatory Notes are not

legally binding, they do represent the international interpretation of

the Harmonized System and provide guidance in determining the scope of

the various headings.

As Customs believes the garments in the previously named rulings

were properly classified in heading 6208, HTSUS, based on the

examination of the garments by Customs which determined that the

garments were sleepwear, it is only the subheadings in which the

garments were classified that is viewed as an error. Clearly, these

garments were of a type which may be characterized as ``intimate

apparel'', i.e., garments which are either worn under other apparel

(undergarments) or, garments which are not worn outside the home and

when worn in the home would be worn only in the presence of family or

intimate friends. Therefore, Customs intends to modify these decisions

to reflect the proper classification of the garments in subheading

6208.91.3010, HTSUSA, if of cotton or in subheading 6208.92.0030,

HTSUSA, if of man-made fibers. These subheadings provide for, inter

alia, women's other garments similar to nightdresses, pajamas,

negligees, bathrobes, and dressing gowns.

Claims for detrimental reliance under Sec. 177.9, Customs

Regulations (19 CFR 177.9), will not be entertained for actions

occurring on or after the date of publication of this notice.

Authority

This notice is published pursuant to 5 U.S.C. 552 (a)(1)(D).

Publication of this notice in the Federal Register pursuant to the

foregoing provision provides a higher degree of notice than that

required under section 625 of the Tariff Act of 1930 (19 U.S.C. 1625),

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, (hereinafter section 625). Accordingly, it is

Customs position that publication pursuant to section 625 is

unnecessary. Customs is using Federal Register publication (1) because

all rulings to which this notice relates may not have been identified,

(2) in order to ensure a uniform and consistent position with respect

to classification of this merchandise at an early date, (3) to assist

Customs in its responsibility to administer informed compliance with

respect to the trade community, and (4) as an aid to the importing

community in exercising reasonable care with respect to importations of

merchandise subject to this notice.

Comments

Before modifying these inconsistent rulings, consideration will be

given to any written comments timely submitted to Customs. Comments

submitted will be available for public inspection in accordance with

the Freedom of Information Act (5 U.S.C. 552), Sec. 1.4, Treasury

Department Regulations (31 CFR 1.4), and Sec. 103.11(b), Customs

Regulations (19 CFR 103.11(b)), on regular business days between the

hours of 9:00 and 4:30 p.m. at the Office of Regulations and Rulings,

Franklin Court, 1099 14th Street, NW., Suite 4000, Washington, DC.

Approved: August 14, 1995

George J. Weise,

Commissioner of Customs.

Dennis M. O'Connell,

Acting Deputy Assistant Secretary of the Treasury.

[FR Doc. 95-20530 Filed 8-17-95; 8:45 am]

BILLING CODE 4820-02-P