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HQ 959808

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October 8, 1996

CLA-2 RR:TC:TE 959808 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.20.0052

Harold M. Grunfeld, Esq.
Suzanne B. Barnett, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue
33rd Floor
New York, NY 10167-0002

RE: Classification of women's garments; union suits; Long johns; underwear vs. outerwear; Heading 6114; HRL 957746; NYRLs 808142, 804689, 875312 and 899816

Dear Mr. Grunfeld and Ms. Barnett:

This is in response to your request for reconsideration of New York Ruling Letter (NYRL) A86505, dated September 6, 1996, which dealt with the classification of a women's garment under the Harmonized Tariff Schedule of the United States (HTSUS). You have provided us with a sample of the garment at issue, as well as other garments that will be sold with the subject garment.

FACTS:

The article at issue is style VST 2005, a woman's garment constructed from 100% cotton waffle knit fabric. It is a full length garment that runs from the neck to the ankles. It features a 6 button partial front opening with right over left closure that extends to the waist, a V-neckline, long sleeves with rib knit cuffs, rib knit cuffs at the ankles, a rib knit sweat patch sewn to the inside of the nape of the neck and picot edging around the neck opening, placket and cuffs. The garment has no waistband. Style VST 2005 will be imported from Hong Kong, China and Macau. The garment will have a hang tag attached that describes the garment as follows:

"Victoria's Secret Country Long Jane Pure Cotton Softly Styled and Delicately Finished". The back of the tag states that " This garment has been made from cotton to ensure comfort and ease of care. To compensate for shrinkage this garment is cut slightly larger to ensure the best possible fit after washing. Please select your normal size."

In New York Ruling Letter A86505, dated September 6, 1996, this garment was classified in subheading 6114.20.0052, HTSUS, which provides for "Other garments, knitted or crocheted: Of cotton: Coveralls, jumpsuits and similar apparel: Other: Women's."

It is your position that this garment is ladies underwear and is classifiable in subheading 6114.20.0060, HTSUS, which provides for "Other garments, knitted or crocheted: Of cotton: Other: Women's or girls'." You contend that the subject garment is classifiable as underwear which is in accord with the manner in which they are designed, marketed and sold. In support of your position you submit the following arguments:

1. The United States Court of International Trade in examining the issue of sleepwear in Mast Industries, Inc. v. United States, 9 CIT 549 (1985), aff'd 786 F.2d 1144 CAFC (1986), determined that garments which are designed, manufactured, marketed and sold as nightwear are properly classifiable as sleepwear for tariff purposes. In Hampco v. United States,
12 CIT 92 (1988), the court held that "[a]s the merchandise was designed, manufactured, marketed, and intended to be used as swimwear, it cannot be classified as shorts. *** [T]he fact that swimwear may be used for other incidental purposes unrelated to swimming. . . does not change its character as swimwear.
In St. Eve International v. United States, 11 CIT 224 (1987), the court held that a garment which was manufactured, marketed and advertised as nightwear was chiefly used as nightwear and so was classifiable as such.

2. Victoria's Secret Stores (VSS) is well recognized in the industry as a retailer of women's intimate apparel.

3. The garment is designed as ladies underwear to be worn under outer garments.
It has been designed as long underwear for warmth and comfort underneath other clothing. The union suit is close fitting and made with fabric that is comfortable. It was tailored on an underwear fit model for comfort against the body.

4. The union suit will be consistently identified as underwear throughout the entire product development cycle. The garment will be invoiced, ordered and sold as underwear. The purchase orders reflect that the garment is being purchased as underwear for VSS and is part of an underwear grouping that includes a long underpant and a long-sleeved style undershirt.

5. The garment will be marketed and sold as women's underwear. The garment is intended to be sold in a folded condition and tied with a VS country ribbon. The front of the hang tag reads as follows: "Victoria's Secret Country
Long Jane Pure Cotton Softly Styled and Delicately Finished".

6. The garment was manufactured in factories that primarily produce underwear and other intimate apparel for VSS.

ISSUE:

What is the tariff classification of the subject garment?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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]."

Your argument that the Court in Mast emphasized that garments which are designed, manufactured, marketed and sold as nightwear are properly classifiable as sleepwear is well taken, yet it should similarly be noted that the Court also stated that "the merchandise itself may be strong evidence of use", citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). Therefore, when ruling on similar merchandise in the past, Customs' policy has been to carefully examine the physical characteristics of the garments in question. When this has not proven substantially helpful, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, 16 CIT 407 (1982). With these points in mind, Customs has reviewed your claim that these garments are classifiable as underwear and we are unpersuaded.

Customs has examined the submitted sample, and we believe that the garment may be best characterized as "loungewear". The construction or styling of the garment does not make it especially suitable as underwear or indicate that it would be principally used as such. In fact, the fabric, design, styling and construction of this garment makes it suitable for various purposes, including lounging in the home. Additionally, certain features would seem to detract from a classification of the garments as a union suit and support classification as a coverall. Specifically, these features include the lack of a full button front opening and a drop seat which are features normally found on union suits. We note that it is your position that the lack of the "trap door" feature is to make the garment more comfortable and less bulky under clothing. While the lack of this feature alone will not eliminate a garment from classification as a union suit, it is the lack of the combination of both features that lead us to the conclusion that the garments are impractical for use as underwear.

In a variety of Customs rulings, it appears that garments classifiable as union suits have certain common features that made them practical for use as underwear. For example, in NYRL 808142, dated April 10, 1995, we classified a man's 100% cotton knit union suit in subheading 6114.20.0055, HTSUS. This garment was full length ( neck to ankles) with long sleeves and a left over right front buttoned opening that extended from the neck to the crotch and it featured a rear buttoned opening from waist level to the crotch. In NYRL 804689, dated December 22, 1995, a toddler's union suit was classified in subheading 6114.20.0060, HTSUS. It was also a full length garment with long sleeves and a front buttoned opening that extended from the neck to the crotch. The garment also featured a rear buttoned opening from waist level to the crotch. It had no waistband and featured rib knit cuffs. In NYRL 875312, dated July 6, 1992, Customs classified a 50% cotton/ 50% polyester thermal waffle knit suit with a fleeced inner surface in subheading 6114.30.3060, HTSUS. This garment was full length with long sleeves, it had rib-knit cuffs on the sleeves and legs and a front buttoned opening that extended from the neck to the crotch. It had no waistband and a one button vertical seat flap. Finally, in NYRL 899816, dated July 15, 1994, we classified a men's garment in subheading 6114.20.0055, HTSUS. The union suit was a full length (neck to ankles) garment with long sleeves and a front buttoned opening that extended from the neck to the crotch. The garment had no waistband and featured ribbed knit cuffs. While it appears that the union suit in NYRL 899816 did not have a rear opening, the front buttons clearly extended from the neck to the crotch.

While we note that some of the features on the instant garment are similar to some of the features on the above garments (the rib knit cuffs and fabric), the lack of the drop seat and full button front opening do not make the subject garment well suited for use as underwear. The lack of these items make it difficult for the wearer to get in and out of the garment when they are outside (or when they are inside) and avoid getting cold in the process. This is the opposite rational for purchasing a union suit as underwear- they are designed to keep the wearer as warm as possible when they are outside.

Moreover, we note that the garment at issue is referred to as the "Long Jane", which is a common term for long underwear. The claim is made that the garment is inspired by traditional men's long johns. Long johns are defined in Underwear the Fashion History , by Allison Carter, as a type of union suit named after John L. Sullivan. Generally, this type of garment is a masculine garment worn for warmth, consisting of waist to ankle-length woolen underpants.
The subject garment is a one-piece garment.

The Textile Category Guidelines contain the following statements with regard to underwear:

The term "underwear" refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors.
Whether or not a garment is worn next to the body of the wearer is not a determinant;. . .

Thus, the Guidelines requirement for a garment to be underwear is whether a garment is ordinarily worn under other garments and not exposed to view. Given the lack of certain features that union suits ordinarily have, it is not necessarily true that the subject garment would be worn under other garments. Though the fabric does provide warmth and comfort, this type of fabric is not limited to garments that are worn under other garments. This type of fabric is more and more frequently being used for sleepwear and outerwear garments. In addition, given some of the detailing, for example, the V- neckline and the picot edging on the wrist, ankles and placket, this garment is acceptable to being viewed when the wearer is dressed indoors.

You have argued that the subject garment is designed, manufactured and will be marketed and sold as underwear. The marketing that was presented consists of the statement that the garment will be sold in the VSS stores, where it will be sold in a folded condition and will be tied with a VSS Country ribbon. It will also be displayed with a thermal long-sleeved undershirt and long underpant. It will also have a hangtag that has been described above. The garment was originally conceived as part of the Underware group and you referred us to Headquarters Ruling Letter (HRL) 957746, dated June 23, 1995, which, inter alia, dealt with the classification of the "Underware union suit".

The subject garment is distinguishable from the "Underware union suit" classified in HRL 957746. The garment in HRL 957746, referred to as style VSU 2002, was a one-piece teddy styled garment made from a translucent finely knit fabric which only reached mid-thigh. We also stated that it was a union suit styled garment and it had a full button front. [Emphasis added]. In addition, the garment was marketed under the specialized "underware" line, while the subject garment has a Country Authentic label on the inside of its neck. Another distinction between HRL 957746 and this case is that in HRL 957746 the marketing information submitted was much more extensive. For example, copies of mailers, in-store displays and point of purchase printed materials that were utilized to promote the garments as underwear were submitted for our review in HRL 957746. This type of information is lacking in the present case.

Furthermore, you refer to purchase orders that you claim demonstrate that these articles are marketed and sold as underwear. As stated above, these documents can be self-serving and are not conclusive of a garment's classification. Moreover, we note that the purchase order references the item as Class 81- which refers to separate tops, not underwear. In addition, in the space listed as "SEASON", the word "CONTINUOUS" is listed, not the fall or winter seasons. This suggests to us that the garment is to be worn on a year round basis. Long johns and union suits are garments that one would wear in the colder months of the fall and winter.

In various catalogue advertisements we have found garments, similar to the instant garment, depicted in a context which suggests loungewear or sleepwear usage. For example, in the 1993 Christmas J. Crew catalogue a women's garment, that appears very similar to the instant one, is depicted and the heading on the page reads "Our ribbed loungewear for in bed and out." "An embodiment of utter relaxation." Moreover, you have stated that the subject garment may be sold in Victoria's Secret Catalogues, as well as in its stores, and that the garment will be displayed in the underwear section. We note that a similarly styled union suit is depicted in an August 95 Victoria's Secret catalogue. It is also identified as a Long Jane union suit and the copy reads: "inspired by the men's classic but made for a woman in soft cotton thermal." The page states: COUNTRY CLASSICS FOR THE WEEKEND. It appears that five of the six garments on the two pages are clearly sleepwear.

Moreover, various catalogues advertise union suits and each of the union suits depicted by different manufacturers features a full button front and a drop seat. Those features make the item practical as a cold weather underwear garment. For example, in the 1995 Fall and Winter JC Penney catalogue union suits are described as follows: "Long sleeve, long leg union suits. One-button seat, In white only." In the L.L. Bean 1996 Christmas catalogue, an underwear union suit for men and women is described in the following manner: "one-piece convenience, full-buttoning seat in back". In the catalogue a man is depicted wearing the garment and it appears to have a full button front opening.

Thus, it is our position that the subject garment is not practical as an undergarment. The fact that a garment could have a fugitive use or uses does not take it out of the classification of its primary use. The design, construction and function of an article is determinative of its classification, whether or not there is an incidental or subordinate function. You have argued that nothing about the design or construction of the garment precludes its use as underwear. This may be true. However, the counter argument that nothing about the design or appearance makes it unsuitable for use as outerwear is equally true. Taking into consideration all of the information before us, especially the garment itself, Customs believes that this garment belongs to a class of garments known as loungewear or leisurewear. This garment is not designed for the principal or primary use as underwear, though it may be used for that purpose. Customs believes that this garment is properly classified as an outwear garment in subheading 6114.20.0052, HTSUS.

HOLDING:

Style VST 2005 is classifiable in subheading 6114.20.0052, HTSUS. The rate of duty is 11.4% ad valorem and the textile category code is 359.

NYRL A86505 is hereby affirmed.

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

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See also:

• Tariff No.: 6114.20.00 - Garments nesoi, knitted or crocheted, of cotton
• Tariff No.: 6114.30.30 - Garments nesoi, knitted or crocheted, of man-made fibers