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HQ 962827




August 29, 2000

CLA-2 RR:CR:TE 962827 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6108.31.0010; 6108.91.0030

Allison M. Baron, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy-five Broad Street
New York, N.Y. 10004

RE: Request for Reconsideration of NY D86889; Women’s Underwear; Loungewear; Sleepwear

Dear Ms. Baron:

This is in reply to your letter of April 27, 1999, requesting reconsideration of New York Ruling Letter D86889, dated February 22, 1999, concerning the classification of certain women’s garments. Your request is on behalf of your client, Donna Karan Intimates, a division of Wacoal America, Inc.

Members of my staff met with you and your client on March 10, 2000, to discuss the issues raised in this case.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY D86889 was published on July 19, 2000, in the Customs Bulletin, Volume 34, Number 29. No comments were received.

FACTS:

The merchandise at issue consists of three styles of garments, which are described in NY D86889 as follows:

Style 446004 is described as a boy-leg brief constructed from 65% cotton, 35% polyester pointelle knit fabric. The garment has a ½ inch elasticized waistband and leg openings that are finished with a one-inch rib knit band.

Style 462004 is a top constructed from 65% cotton, 35% polyester pointelle knit fabric. The top has ¼ inch shoulder straps, one-inch side slits, and a hemmed bottom. The upper edge of the back of the garment is cut straight across, from side seam to side seam.

Style 462003 is a pullover constructed from 65% cotton, 35% polyester pointelle knit fabric with more than nine stitches per two centimeters in the horizontal direction. The pullover has a rib knit V-shaped neckline, short sleeves, one-inch slits, and a hemmed bottom.

You do not contest the classification of style 462009 in NY D86889.

ISSUE:

Are the garments in question classifiable as outerwear, underwear or sleepwear?

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, taken in their appropriate order.

In past rulings, Customs has stated that the crucial factor in the classification of a garment is the garment itself. As stated by the court in Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (Ct. of App’ls for Fed. Cir., April 1, 1986), “the merchandise itself may be strong evidence of use”. However, when presented with a garment which is ambiguous and not clearly recognizable as sleepwear, underwear, loungewear or outerwear, Customs will look to 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. 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 Ct. Int’l Trade 407 (1992).

Consideration of marketing information, and the design and construction details of the garments are instructive in determining whether or not they are principally used as outerwear or underwear. Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind of merchandise.

In holding that the garments would not be principally used in the United States as underwear, Customs classified styles 446004 and 462004 in heading 6114, HTSUSA, which provides for other garments, knitted or crocheted. Customs classified style 462003 in heading 6110, HTSUSA, which encompasses sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.

In support of your claim that the garments are principally used as underwear, you submitted a letter from the President of Donna Karan Intimates and DKNY Underwear Division of Wacoal America, Inc., stating that the styles at issue are considered underwear. The letter reads, in part:

The styles referenced in this letter are designed to reflect the latest trend in women’s foundation garments. However, each garment is also designed to ensure that it will be physically suitable for its intended purpose as a foundation piece to be worn under outerwear garments. For example, none of the subject styles feature snaps or buttons that will interfere with the wearer’s outerwear blouse, skirt, or pants. Similarly, while all of these styles feature seams and stitching designed to indicate that these components are “luxury” garments, these same seams are only found in the areas that will enhance, rather than distort, their use as underwear.

Additionally, you submitted a letter from the Nordstrom department store stating that the store purchases all of Wacoal’s products for the intimate apparel and sleepwear departments and they are sold to the consumer as intimate apparel and sleepwear.

Notwithstanding the statements of intent to market the garments as underwear, we find that the garments do not support such classification. The garments are not form fitting and it appears they would interfere with the drapability of a garment worn over them. Moreover, your client acknowledged during the meeting that sleepwear buyers in department stores ultimately purchased the garments.

Classification of garments as sleepwear is also based upon use. In Mast, supra, the Court of International Trade cited several lexicographic sources, among them Webster's Third New International Dictionary, which defined "nightclothes" as "garments to be worn to bed." Customs also refers to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988), for guidance in determining whether a garment has characteristics of sleepwear. At page twenty-four, the Guidelines state that "the term 'nightwear' means 'sleepwear' so that certain garments worn in bed in the daytime . . . are included."

In our view, the garments in question are lightweight, loose fitting, extremely soft and sheer and are of the kind principally used as sleepwear in the United States. Thus, they are more specifically provided for as sleepwear in heading 6108 and are not classified as other garments in heading 6114.

HOLDING:

NY D86889 is MODIFIED.

If imported separately, or without a matching component to comprise pajamas, the garments at issue are classifiable as other sleepwear garments in subheading 6108.91.0030, HTSUSA. This provision provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of cotton: Other.” Goods classified in subheading 6108.91.0030, HTSUSA, are dutiable at the general column one rate of 8.7 percent ad valorem and are subject to textile category 350.

If imported in shipments containing equal numbers (pairs) of matching tops and bottoms, the garments will be classified as women’s knit pajamas in subheading 6108.31.0010, HTSUSA. This provision provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightdresses and pajamas: Of cotton: Women’s.” Goods classified in subheading 6108.31.0010, HTSUSA, are dutiable at the general column one rate of 8.7 percent ad valorem and are subject to textile category 351.

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 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, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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