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HQ 951182


June 18, 1992

CLA-2 CO:R:C:T 951182 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6208.92.0030, 6208.99.6030

Alan Klestadt, Esq.
Judith Schechter, Esq.
Grunfeld, Desiderio,
Lebowitz & Silverman
12 East 49th Street
New York, New York 10017

RE: Classification of certain women's camisole and tap pant sets; underwear v. sleepwear

Dear Mr. Klestadt & Ms. Schechter:

This ruling is in response to your request of March 12, 1992, on behalf of Mast Industries (Far East) Limited, regarding the classification of certain women's camisole and tap pant sets. The garments will be imported from Hong Kong and China. Several Sample garments have been submitted for our review.

FACTS:

Style C-6152 consists of a woven 100 percent polyester tap pant and a matching fabric camisole. The camisole features a scalloped V-shaped embroidered top front edge, spaghetti-type shoulder straps and a rounded slightly flared bottom edge. A transparent V-shaped mesh insert with embroidered flowers extends six inches down from the neckline. The boxer style tap pant features an elasticized waist and two-inch side slits.

Style C-6180 features a tap pant identical to that of C- 6152. The 100 percent woven polyester camisole features a 3-1/2 inch wide band of scalloped raschel lace across the top, double spaghetti-type shoulder straps and a fairly straight bottom.

Style C-6181 features a tap pant identical to that of styles C-6152 and C-6180. The camisole is made of 100 percent polyester woven fabric and features a V-neck formed by a 3-1/2 inch wide band of scalloped raschel lace, scalloped raschel lace edging along the sides and straight back, spaghetti-style shoulder straps and a rounded bottom. -2-

Style C-6161 consists of a woven 100 percent silk tap pant with a matching fabric camisole. The camisole features a V-styled front, a 1-1/4 inch wide self-fabric facing which is only stitched down along the top edge and side seams, spaghetti- style straps and a rounded bottom. The tap pant features an elasticized waist and high cut leg openings with three-inch overlaps at the waist in lieu of side seams.

Style I-6375 (Lane Bryant) consist of a 100 percent polyester woven tap pant and matching fabric camisole. The camisole features a V-shape front with a 2-1/2 inch raschel knit lace trim, spaghetti-style adjustable shoulder straps, a straight back and a straight bottom that flares slightly at the sides. The tap pant features an elasticized waist and high cut leg openings with side slits.

Style C-6185 (Cacique) consists of a 100 percent polyester woven tap pant and matching fabric camisole. The camisole features pleated straps which taper at the points at which they join the body of the garment. At their widest point, the straps measure approximately 1-1/2 inches. The garment has a V-shape front with a knit raschel lace trim with scalloped edges. a small fabric rosette is sewn at the bottom edge of the V-front. The garment is straight across the back and has a rounded bottom. The tap pant features an elasticized waist and high cut leg openings with side slits.

Style VS-976 consists of a 100 percent polyester woven tap pant and matching fabric camisole. The camisole features a V-shape front, spaghetti-style adjustable shoulder straps and contrasting colored piping along the top edges of the garment. The front of the camisole consists of two panels. A strip of 1/8-inch contrasting piping is stitched along the edge of the larger panel so as to cut across the front of the garment from the point of the shoulder strap almost to the bottom side. The smaller panel has piping along the top edge from the point of the other shoulder strap to the bottom of the V-front where the two panels meet. The garment has a rounded bottom. The tap pant features an elasticized waist and high cut leg openings.

The submitted garments are imported by Mast for sale by Victoria's Secret Stores, Victoria's Secret Catalogue, Cacique and Lane Bryant.

You have submitted copies of Mast production orders and customer (stores) purchase orders, identified the factories where the garments are produced and identified the garments on which the designs of three of the Mast garments are based.

ISSUE:

Are the submitted camisole and tap pant sets classifiable as underwear garments or as pajamas of heading 6208, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In HRL 089367 of July 31, 1991, several definitions of pajamas were cited. Among them:

A loose-fitting garment consisting of trousers and a jacket, worn for sleeping or lounging. The American Heritage Dictionary, Second College Edition, at 893.

Night clothes consisting of loose-fitting trousers and jacket. The Random House College Dictionary, 1968, at 956.

A loose-fitting garment having of (sic) trousers and a jacket, worn for sleeping or lounging. Webster's II, New Riverside University Dictionary, 1984, at 845.

It would appear from the above definitions and the discussion in HRL 089367 that pajamas are generally considered garments which are worn for lounging or sleeping.

Underwear is defined as: "Underclothes." The Fashion Dictionary, by Mary Brook Picken, at 397. Underclothes are defined therein at 396 as: "Garments worn under other clothes, including those worn next to skin." In Webster's II, New Riverside University Dictionary, 1984, at 1259, underwear is defined as "Clothing worn under the outer clothes and next to the skin."

In this case, information has been submitted regarding the design and manufacture of the garments at issue. Additionally, copies of production orders and customer (stores) purchase orders identifying the merchandise have been submitted. The production orders describe the merchandise in each case as a camisole and tap pant set and indicate "intended to be worn under another garment."

While Customs will consider documentation such as production orders and purchase orders, we recognize that, particularly in the case of orders between related, though separate, entities, -4-
descriptions of merchandise contained therein may be self- serving. Additionally, while information regarding the manufacturing factories may be of interest, it is not determinative of the classification of an article in the United States.

The most persuasive evidence are the garments themselves. The court in Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), noted that "the merchandise itself may be strong evidence of use." United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). In Mast, supra, at 552, the court noted the definition of "nightwear" as "garments to be worn to bed." The court held that the particular garment at issue was classifiable as nightwear since it was designed, manufactured, marketed and used as nightwear.

The various decorative features found on these garments, i.e., lace, fabric rosettes, etc., are common to underwear garments, as well as nightwear. These garments do not appear to have any features which would make them unsuitable for use as underwear. The garments are similar to camisole and tap pant sets typically sold as underwear. While it is possible a consumer may choose to sleep in one of these camisole/tap pant sets, in Customs view, such use would be a fugitive use.

Information has been submitted regarding the design and manufacture of the garments at issue. In this case, that, in combination with the most persuasive evidence, the garments themselves, satisfies Customs that these garments are indeed undergarments and should therefore be classified as such.

HOLDING:

The tap pants and camisoles of styles C-6152, C-6180, C-6181. I-6375, C-6185 and VS-976 are classifiable as women's woven underwear of man-made fibers in subheading 6208.92.0030, HTSUSA, textile category 652, dutiable at 17 percent ad valorem.

The tap pant and camisole of style C-6161 are classifiable as women's woven underwear of silk in subheading 6208.99.6030, HTSUSA, dutiable at 7.5 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status -5-

Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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