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HQ 957746




June 23, 1995

CLA-2 R:C:T 957746 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.21.0010; 6109.10.0037; 6114.20.0060

Suzanne B. Barnett, Esq.
Grunfeld, Desiderio, Lebowitz &
Silverman
245 Park Avenue
New York, NY 10167-0002

RE: Classification of women' s intimate apparel garments; underwear v. outerwear; Heading 6108; Heading 6109; Heading 6114; Heading 6110

Dear Ms. Barnett:

This is in response to your inquiry of February 6, 1995, on behalf of Mast Industries, Inc., concerning the tariff classification of certain women' s garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You state that the subject merchandise will be imported by Mast Industries, Inc. for sale by Victoria's Secret Stores, a subsidiary of The Limited Inc., and the nation's largest specialty retailer of women's intimate apparel. Samples were submitted for examination.

FACTS:

Styles VSM 1531 and 1552 are 100 percent knit cotton panties. They contain elasticized waistbands and leg openings and cotton gussets at the crotch.

Style VSU 1116 is a crop style upper body garment that is constructed of 100 percent knit cotton. The garment has capping along the V-front, rounded rear neck, and the armholes. The garment also contains a three button means of closure at the middle and an elasticized bottom band.

Style VSU 2003 is an upper body garment made of 100 percent knit cotton fabric. Style
VSU 2003 also features a continuous elasticized bottom band, triangular shaped cups and elasticized capping on the cups which extends to form shoulder straps.

Style VSU 2002 is a unionsuit styled underwear teddy constructed from a translucent finely knit 100 percent cotton fabric. This unionsuit has a full button front, short capped sleeves, and hemmed leg openings.

Style VSU 3120 is a short sleeved pullover made of 2x2 rib knit 95 percent cotton/5 percent spandex fabric. The hemmed bottom on Style VSU 3120 reaches the wearer's waist area and the sleeves and round neckline are capped. The garment also contains a semi-circular sweat patch at the back of the neck.

Style VSU 3106 is a sleeveless upper body garment constructed from 2x2 rib knit 100 percent cotton fabric. The garment's hemmed bottom reaches below the waist and there is capping at the round neckline and armholes. A semi-circular sweat patch is sewn to the back of the neck.

ISSUE:

What is the proper tariff classification for the subject garments?

LAW AND ANALYSIS:

Classification of goods under the 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. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Heading 6114, HTSUSA, is the provision for other garments knitted or crocheted.
Heading 6114, HTSUSA, is a residual provision for knit garments not otherwise more specifically provided for in prior headings. In this case, Style VSU 2002 is commercially known as a unionsuit. A unionsuit is not specifically provided for in the nomenclature and as StyleVSU 2002 is a knit garment not otherwise specifically provided for in any of the headings prior to Heading 6114, HTSUSA, it is properly classifiable under Heading 6114, HTSUSA.

Heading 6108, HTSUSA, provides for, inter alia, women's or girls' slips, petticoats, briefs, and panties. As Styles VSM 1531 and 1552 are women's panties, they fit squarely within Heading 6108, HTSUSA, which is the provision for women's panties.

Heading 6212, HTSUSA, provides for brassieres and other body supporting garments.
The Fashion Dictionary, by Mary Brooks Picken, (1973), defines "brassiere" as "a close-fitting undergarment shaped to support the bust." Similarly, Webstcr's New Collegiate Dictionary, (1977), defines "brassiere" as "a women' s close-fitting undergarment with cups for bust support. At first glance, it appears that Style VSU 2003 with its bra-like appearance would be classifiable under Heading 6212, HTSUSA. However, when examining Style VSU 2003 more closely, it is
apparent that it lacks the support features that would justify its classification as a brassiere. Style
VSU 2003 contains no traditional characteristics ofbrassieres, such as underwire or hook and eye closures. Moreover, the fabric used in the construction of Style VSU 2003 is not body supporting and the cups do not hold the bust firmly in place, nor are they molded or fitted.

Heading 6109, HTSUSA, provides for, inter alia, women's or girls' t-shirts, singlets, tank tops, and similar garments. The Explanatory Notes to the Harmonized Commodity Description and Coding System EN), although not legally binding, are the official interpretation of the nomenclature at the international level. The EN to Heading 6109, HTSUSA, include "singlets and other vests" among the types of garments classifiable under Heading 6109, HTSUSA. Funk
& Wagnalls New England Standard Dictionary of the English Language, (1939), defines singlets as "underwear" and vests as "an undershirt, especially one for women's wear." Underwear-type shirts are therefore prima facie provided for at the international level under Heading 6109, HTSUSA.

In Headquarters Ruling Letter (HRL) 952266, dated November 5, 1992, Customs classified garments similar in construction to Style VSU 2003 under Heading 6109, HTSUSA. Customs explained that although the garments had a bra-like appearance, they did not possess any support features which would render them classifiable as brassieres. Consequently, Style VSU 2003 which also lacks support features is classifiable under Heading 6109, HTSUSA. Also Style VSU 1116, a cotton knit underwear style top fits squarely within the provision of Heading 6109, HTSUSA.

The remaining issue is the proper classification for Styles VSU 3120 and 3106. Customs is of the opinion that the garments are potentially classifiable under Heading 6110, HTSUSA, the provision for pullovers and similar articles, or Heading 6109, HTSUSA, the provision for underwear.

You contend that the subject garments are classifiable as underwear which is in accordance with the manner in which they are designed, marketed, and sold. You cite several cases in support of your position. In Mast Industries, Inc. v. United States , 9 CIT 549 (1985), aff'd 786 F.2d 1144 CAFC (1986), the court determined that a garment which was designed, manufactured and used as nightwear was classifiable as nightwear. 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. Inc. 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. Finally, although you do not refer to the recent case Inner Secrets/Secretly Yours. Inc. v. United States, Slip Op. 95-60, 19 CIT .(April 10, 1995), the court was faced with the issue of whether women' s boxer-style shorts were classifiable as "outerwear" under Heading 6204, HTSUSA, or as "underwear" under Heading 6208, HTSUSA. The court stated the following, in pertinent part:

[P]laintiff's preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff's garments are merchandised sheds light on what the industry perceives the merchandise to be. Plaintiff also established that it is considered an underwear resource, that the Hong Kong factory which manufactured its merchandise does not produce outerwear * * *. Further, evidence was provided that plaintiff's merchandise is marketed as underwear. While advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach.

You emphasize that Victoria' s Secret Stores is well recognized in the industry as a retailer of women' s intimate apparel. You state that "even the court in Mast noted that the only apparel sold in the eighty-two Victoria Secret Stores is intimate apparel-silks, undergarments, sleepwear and robes." You further contend that the subject garments are classifiable as underwear for the following reasons:

(1) They have been designed based upon European underwear fashions.

(2) They will be purchased by Victoria' s Secret Stores, which is well-established as an intimate apparel store.

(3) The garments will be marketed and sold as women's underwear.

(4) They are designed to be worn under outer garments. In this regard, they have been fitted on an underwear fit model for comfort against the body.

(5) The garments are made with fabrics and features that are commonly found on other underwear garments.

(6) These garments will be consistently identified as underwear from the initial purchase of the original European samples throughout the entire product development cycle. These garments will be invoiced, ordered and sold as underwear.

(7) The garments are manufactured in factories that primarily produce underwear and other intimate apparel.

You have also submitted copies of mailers, in-store displays and point of purchase printed materials utilized to promote the subject garments which are marketed under the specialized "underware" line.

In light of the specialized nature of Victoria' s Secret Stores, the fact that it is well-established as an intimate apparel retailer, the considerable marketing and advertising data presented to substantiate your claim, Customs agrees that Styles VSU 3120 and 3106 are properly classifiable as underwear under Heading 6109, HTSUSA. Consequently, an analysis of the subject garments classification under Heading 6110, HTSUSA, is not required.

It is important to note that although the cited cases give credence to the manner in which an article is designed, manufactured, and marketed; in the most recently cited case, Inner Secrets, the court acknowledged that the manner in which a garment is merchandised sheds light on what the industry perceives the merchandise to be. However, the court refrained from stating that information conceming design, manufacturing, and marketing was dispositive of tariff classification. In fact, the court in Inner Secrets, further stated that "while advertisements also are not dispositive as to correct classification under the HTSUS, they are probative of the way that the importer viewed the merchandise and of the market the importer was trying to reach."
Customs interprets the court in Inner Secrets as meaning that although this particular information will be helpful in ascertaining the proper tariff classification provision, the mere fact that an importer provides design, manufacturing, and marketing information will not in every instance be enough to substantiate a particular importer' s preferred tariff classification claim. See, Regaliti, Inc. V. United States, 16 CIT 407 (1992), where the plaintiff argued that the garments at issue were designed as tights, identified on invoices as tights, and advertised as tights. On that basis, the plaintiff argued that the garments were tights, were used as tights, and should be classified as tights. The court rejected the plaintiff's claims regarding marketing and advertising and recognized that "others do not usually call these items tights." Thus, the court factored in the overall appearance of the garment and its use in the United States to determine the proper tariff classification.

HOLDING:

Based on the foregoing; Styles VSM 1531 and 1552 are classifiable in subheading 6108.21.0010, HTSUSA, as women's cotton knit panties. The applicable rate of duty is 8 percent ad valorem and the textile restraint category is 352. Styles VSU 3106, 3120, 1116, 2003 are classifiable in subheading 6109.10.0037, HTSUSA, as women's cotton knit underwear. The applicable rate of duty is 20.6 percent ad valorem and the textile restraint category is 352. Style VSU 2002 is classifiable in subheading 6114.20.0060, HTSUSA, as women's other knit garments. The applicable rate of duty is 11.4 percent ad valorem and the textile restraint category is 359.

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 renegotiations 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 internal issuance of the U.S. Customs Service, which 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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