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HQ 964194




April 18, 2002

CLA-2 RR:CR:TE 964194 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.90.1090

Diane L. Weinberg, Esq.
Meeks & Sheppard
330 Madison Avenue
New York, NY 10017

RE: Classification of women’s knit and woven sleepwear garments; essential character analysis; GRI 3(b); NAFTA eligibility

Dear Ms. Weinberg:

This is in response to your request dated February 28, 2000, and follow-up letters of April 3, and April 5, 2000, on behalf of your client, Movie Star, Inc., requesting a binding classification ruling for a number of garments described as women's knit and woven sleepwear. Five samples of the articles at issue were submitted to this office.

FACTS:

The five garments are two piece sleepwear sets consisting of a top and a bottom. Each set resembles what is commonly referred to as "lingerie". Two samples are baby dolls, two are short pajamas, and one is a pair of long pajamas. In each case the top is composed primarily of raschel knitted lace and the bottom is composed of woven polyester charmeuse. The raschel knitted lace used in each sample is NAFTA originating; the woven fabric is not.

Style KO 59009 is a woman's two piece baby doll pajama consisting of a scoop neck top and a pair of bikini panties. The panties are manufactured from woven polyester charmeuse and feature an elasticized picot edge. The top portion of the baby doll extends from the shoulders to the hip area. The top has a front yoke bodice composed of sheer woven polyester. An embroidered band, with sequins and seed pearls, serves as an insert connecting the upper bodice to the remainder of the top, which is raschel knitted lace composed on 100 percent polymide. The top has a fly away front that is open from underneath the bust area to the hem. There is a 1/4 inch woven capping that extends around the front of the top and forms adjustable shoulder straps. The back edge is elasticized.

Style KO 53887 is a woman's two piece baby doll pajama consisting of a v-neck top and a pair of bikini panties. The panties are manufactured from woven polyester charmeuse and feature an elasticized picot edge. The top portion of the baby doll extends from the shoulders to the hip area and is made of both knit and woven fabrics. The top portion of the top, which extends to the waist, is composed of raschel knitted lace made from 100 percent sheer woven polyamide. There is an elasticized edging around the neck, armholes, and back. A small heart-shaped medallion is inserted at the center of the v-neck front. The short skirt portion of the top is manufactured from 100 percent woven polyester charmeuse. It has spaghetti straps manufactured from woven polyester charmeuse. The medallion is a product of China.

Style 6TA72552 is a pair of short pajamas consisting of a raschel lace knitted sleeveless top made of 100% nylon fabric, and a 100% woven polyester charmeuse short pant. The sleeveless top extends from the shoulders to slightly below the waist and has a deep v-neckline and a full front opening secured by four button and loop closures (with the buttons on the inside) that are covered by simulated bows made of woven polyester charmeuse. There is a 1/4 inch capping around the neck, full front opening, and armholes. The bottoms are tap pants with a covered elasticized waistband and flared leg openings.

Style KW 55615 is a two piece short pajama set consisting of a sleeveless lace top made from 100 percent polyamide knitted raschel lace and woven polyester charmeuse tap pants. The sleeveless, pullover top extends from the shoulders to slightly below the waist and features an embroidered medallion below the v-neckline, 1/4 inch capping around the neck, armholes, and curved bottom edge. The bottoms are tap pants with a covered elasticized waistband, and flared leg openings. The medallion is a product of China.

Style KO 55114C consists of a short sleeve top made of 100% raschel knitted lace, and a 100% woven polyester charmeuse long bottom. The top extends from the shoulders to slightly below the waist. It features cap sleeves and a v-neckline, the front of which is bordered with lace trim (galloon) which extends asymmetrically down the front to the bottom edge. There is a simulated bow sewn onto the lace. The back neckline has 1/4 inch capping. The pull-on, ankle length bottoms feature an elasticized waistband and hemmed bottoms. The galloon lace is NAFTA originating.

ISSUE:

How is the essential character analysis made when dealing with sleepwear garments that are constructed from both knit and woven components? Are the articles classifiable under heading 6109, HTSUSA, as knitted garments, or under heading 6208, HTSUSA, as woven garments. Are the garments eligible for a NAFTA preference? LAW AND ANALYSIS:

Classification

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. Where the goods cannot be classified solely on the basis of GRI 1, and if the remaining headings and legal notes do not otherwise require, the remaining GRI's may be applied in order of their appearance.

In this instance, each of the 5 subject samples consists of both a top and a bottom imported together which jointly create a unit which is commonly and commercially known as “pajamas.” However, the tops are knit and therefore potentially render the pajamas classifiable in heading 6108, HTSUSA, and the bottoms are woven and therefore potentially render the pajamas classifiable in heading 6208, HTSUSA.

The potential classification in two separate HTSUSA headings raises the application of Legal Note 13 to Section XI, HTSUSA, which provides:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.

The language "unless the context otherwise requires" is of particular importance in this case. Pajamas are commonly known as either one-piece garments such as "sleepers" (sometimes known as Dr. Denton's) or two-piece garments consisting of a top and bottom. Thus, garments classified as pajamas generally consist of two garments, i.e., a top and a bottom treated as a unit and known as pajamas. See, HRL 088635 of May 24, 1991 and HRL 089367 of July 31, 1991. The tariff specifically provides for pajamas by name in the various provisions for men's and women's knit and woven garments, i.e., in headings 6107, 6207, 6108, and 6208, HTSUSA. Thus, pajamas consisting of a top and bottom which together create a unit which is commonly and commercially known as pajamas fall within the exception to Note 13 created by the language "unless the context otherwise requires". Pajama components entered together are therefore classified together under the appropriate pajama provision.

Women's pajamas are classified in either heading 6108, HTSUSA, or heading 6208, HTSUSA, depending on whether the pajamas are classified as knit or woven. In this case, the pajamas at issue are both, i.e., the top is knit, the bottom is woven. Given that the goods are described in part by two different HTS headings, the determination of where this is classified requires review of GRI 3 which provides, in pertinent part:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

We do not view the garments at issue; each composed of a top and a bottom, as two different articles, which are, prima facie, classifiable in different headings. Instead we view the top and bottom as uniting to create a distinct article of commerce, i.e., pajamas, which are classifiable, eo nomine, in headings 6108, HTSUSA, or 6208, HTSUSA, depending on whether the pajamas are classified as knit or woven garments.

Because the pajamas at issue consist of a knit top and woven bottom, Customs must determine which component imparts the essential character. In HRL 956492 dated September 19, 1994, we stated that since the fundamental nature of pajamas, as stated infra, requires both a top and a bottom, and each generally is equally important to the creation of the whole, i.e., the pajamas, Customs generally believes that an essential character determination is impossible to establish and therefore classification must be based on GRI 3(c) which states:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

We agree that both the knit lace-like top and the woven bottom contribute and form the garment (pajama), and generally both the top and bottom pieces create the pajama’s identity. However, upon examination of the articles before us it appears that these are specific types of pajamas more in the line of "negligee" or "lingerie" than ordinary woman's pajamas. In each case the knit lace-like component of the top of each of the 5 gaments before us is so pervasive, and creates such a revealing and intimate look, that in our view, it is accurately deemed to "provide a visual and significant decorative effect." The knit lace-like portion of the garment defines the garment and creates a pajama of a very different character from a regular woven or totally knit pajamas which are purchased and worn mainly based upon their comfort and warmth.

It is this office's opinion that the knit lace-like components of the articles at issue impart the essential character to the articles based on the nature of the material. By providing a visual and significant decorative effect, the lace-like top of the articles define these garments. In addition, it is the lace top which is the "draw" which motivates the consumer to buy the merchandise. Accordingly, classification of this garment is based on its knitted lace-like component and classification is proper under heading 6108, HTSUSA.

NAFTA Eligibility

As to your request regarding trade preference treatment under the NAFTA, to be eligible for the duty preference provided under the NAFTA, goods must be “originating goods” within the rules set forth in General Note 12(b), HTSUSA. General Note 12(b) provides in pertinent part:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a NAFTA party” only if—

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that—

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, . . .

Your letter indicates that the raschel knit that forms the garments tops are manufactured in a NAFTA country from fabric which is made from yarn which satisfies the NAFTA rule of origin. You indicate that the garments are cut to shape and assembled in Mexico primarily from raschel knit fabric knit in Mexico from filament yarn that is extruded in Mexico. Except for Style 6TA72552, in
which the nylon lace fabric forming the top is knitted in the United States from USA materials. You state that the fabric forming the bottoms is manufactured in a non-NAFTA country.

Since the pajamas are not wholly obtained or produced entirely in Canada, Mexico and/or the United States, they will only qualify for NAFTA treatment if the provisions of General Note 12 (b)(ii)(A) are met. In other words, each of the non-originating materials must undergo a change in tariff classification as described in subdivision (t) or satisfy the rules set forth in subdivisions (r), (s), and (t) of General Note 12, in order to qualify for NAFTA treatment. The specific tariff shift rule which must be met in order to qualify as an originating good is as follows:

General Note 12(t)/61.33:

A change to subheadings 6108.32 through 6108.39 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516 or 6001 through 6006, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.

For purposes of this ruling request, other than the non-NAFTA originating woven material, you state that all other materials are NAFTA originating. You state that the fabrics will be both cut and sewn in Mexico. General Note 12(t)/61.33 only applies to the component that determines the tariff classification of the good. See, Chapter Rule 2, GN 12(t)61.CR2. Where the woven non-NAFTA originating components do not determine the tariff classification of the pajamas (in this case the woven components of the pajamas), they would be disregarded in determining whether the pajamas are eligible for NAFTA preferential tariff treatment. Accordingly, we find that under the scenario provided the pajamas would meet the tariff shift requirement and would qualify as originating goods for NAFTA preferential treatment.

HOLDING:

The subject merchandise is classifiable under subheading 6108.32.0010, HTSUSA, which provides for “Women's or girls; slips, petticoats, briefs, panties, nightdresses, pajama, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Nightdresses and pajamas: Of man-made fibers, Women's."

Provided the garments meet the tariff shift requirements of General Note 12(t)/61.33, HTSUSA, the subject pajamas would be eligible for duty free treatment under the North American Free Trade Agreement.

Sincerely,

John Durant, Director
Commercial Rulings Division


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