[Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
[Notices]
[Pages 43183-43184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20530]



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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