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HQ 956102


August 24, 1994

CLA-2 CO:R:C:T 956102 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.62.2010

District Director
U.S. Customs Service
312 Fore Street
Portland, ME 04112-4688

RE: Decision on Application for Further Review of Protest No. 0101- 94-100033; classification of women's knit stirrup pants; outerwear v. underwear; garment suitable for use as outerwear leggings; St. Eve International, Inc. v. United States, Slip. Op. 87-37 (1987); HRL 082118 (5/20/88); classification of multi-use articles sold in an ambiguous sales environment.

Dear Sir:

This is a decision on application for further review of a protest timely filed on February 18, 1994, by W.N. Proctor Co., on behalf of L.L. Bean, against your decision regarding the classification of ladies' knit stirrup pants. Entry was made on August 6, 1993, and the merchandise was liquidated on November 26, 1993.

FACTS:

The garment at issue, referenced style number R086, was classified by Customs under subheading 6104.62.2010, HTSUSA, which provides for, in pertinent part, women's cotton trousers, dutiable at a rate of 16.7 percent ad valorem, with a textile quota category of 348.

Protestant claims that the garment is properly classifiable under subheading 6108.91.0005, HTSUSA, which provides for, in pertinent part, women's cotton underwear, dutiable at a rate of 9 percent ad valorem, with a textile quota category of 352.

Style R086 is a pair of stirrup pants with an elasticized waistband and no pockets or drawcord. It is manufactured from 52 percent cotton and 48 percent polyester.
The garment is displayed in a full-color advertisement in the L.L. Bean catalogue. In the ad a women is shown wearing the stirrup pants as she reclines on a bed with a book and a bowl of popcorn. The copy describes these goods as "UltraSoft Cotton/Microfiber Underwear" which are "finer than silk," provide "outstanding warmth," and are "great for layering -- equally cozy for lounging around the home."

ISSUE:

Whether the stirrup pants at issue are classifiable as underwear, under subheading 6108.91.0005, HTSUSA, or as women's outerwear trousers of subheading 6104.62.2010, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

At issue is whether the subject garment is classifiable as underwear or outerwear. The subject merchandise is of a type of garment that is capable of being used for more than one purpose. Use of this article both as underwear and loungewear is feasible and it is this duality which complicates classification. When confronted with garments which are claimed to be of a particular class, yet resemble articles of another class, Customs will first examine the article itself and its particular design features and thereafter any other extrinsic evidence pertaining to the marketing, advertising and sale of the article. Customs will also consider information regarding what the garment passes for in the trade and commerce of the United States and what the expectations of the ultimate purchaser are. See St. Eve International, Inc. v. United States, Slip. Op. 87-37 (1987). See also Headquarters Ruling Letter (HRL) 082118, dated May 20, 1988, which sets forth Customs' approach to the classification of multi-use articles sold in an ambiguous sales environment.

The stirrup pant at issue is manufactured from a fabric that is advertised in the L.L. Bean catalogue as "finer than silk." According to the catalogue, the fabric is designed to provide "outstanding warmth" and to be "great for layering." All these characteristics are indicative of the garment's status as underwear. A physical examination of the actual garment, however, yields a different finding; the garment is much thicker than silk and is of sufficient weight so as to be eminently suitable for use as outerwear. The fabric used in the manufacture of style R086 is as thick, if not thicker, than the fabric used in many of the outerwear garments commercially known as "leggings" which have been classified by Customs as trousers.
Although style R086 is explicitly referred to as "underwear" in the L.L Bean catalogue, this designation will not be deemed determinative of classification if it is not supported by the physical characteristics of the garment. As stated above, the garment appears well-suited for use as outerwear. The catalogue's copy also supports this garment's usage as outerwear in that it describes style R086 as being "[G]reat for layering -- equally cozy for lounging around home." [emphasis added] In the past when Customs has been presented with conflicting information as to how a garment is to be worn, our analysis has focused on how the garment will be principally used. See Headquarters Ruling Letter 955088, dated December 14, 1993, in which this office noted,

"... in order to be classified as nightwear, the garments at issue must be principally used as garments worn to bed. The advertising for the subject merchandise makes it clear that these garments are multi-purpose garments. They are not advertised as sleepwear; they are advertised as more than sleepwear. They are not principally to be worn to bed, but to be worn for a variety of reasons or occasions, including shopping. It is clear from the manner these garments are advertised that wearing them to bed is but one possible use to be considered along with many others."

Using the same analysis, we are of the opinion that style R086 is to be principally used as loungewear which is a form of outerwear. The garment is presented to the consumer as "underwear" in the catalogue, yet it is also described as loungewear and is depicted being worn as such in a catalogue photograph. Style R086's physical design is most certainly consistent with use as outerwear, inasmuch as the fabric is thick enough for such use, it is opaque, and it is designed with a fashionable rib knit construction. While style R086 may be worn as long underwear, it is this office's opinion that a totality of the evidence yields the finding that this garment will be principally used as loungewear trousers and should be classified accordingly under heading 6104, HTSUSA.

HOLDING:

Style R086 is classifiable under subheading 6104.62.2010, HTSUSA, which provides for women's trousers and breeches, knitted, of cotton, dutiable at a rate of 16.7 percent ad valorem. The applicable textile quota category number is 348.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was entered, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the CF 19 Notice of Action to satisfy the notice requirement of Section 174.30(a), Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of these entries in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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