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HQ 964575




July 12, 2002

CLA-2 RR:CR:TE 964575 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.22.0000

Diane L. Weinberg, Esq.
Meeks & Sheppard
330 Madison Avenue
39th Floor
New York, NY 10017

RE: Classification of women’s knit and woven sleepwear garment; NAFTA eligibility; Article 509

Dear Ms. Weinberg:

This is in response to your request dated August 23, 2000, on behalf of your client, Movie Star, Inc., requesting a binding classification ruling for a garment described as a pair of women's woven babydoll pajamas. You submitted a sample of the article to assist us in our determination.

FACTS:

The subject merchandise is a two piece sleepwear set consisting of a top and a bottom. The set resembles what is commonly referred to as "lingerie". Style 6842416 is a woman's two piece baby doll pajama consisting of a v-neck top with spaghetti straps and a pair of thong bikini panties. The top portion of the baby doll extends from the shoulders to the hip area. The top has a flyaway front and spaghetti straps. The top is primarily composed of a woven polyester chiffon fabric. The woven fabric is a product of Mexico. The bra portion is composed of the woven polyester chiffon fabric with a knitted lace overlay. The knitted lace is a product of the United States. The back yoke is a power mesh that is a product of Mexico. The spaghetti straps and the capping around the armholes are composed of woven polyester charmeuse fabric that is a product of South Korea. There is an embroidered lace trim from China that covers the area where the knit lace from the bra joins the woven chiffon. The thong bikini panties are manufactured from woven polyester charmeuse and feature an elasticized picot edge. The charmeuse fabric for the panties is also a product of South Korea.

ISSUE:

How is the essential character analysis made when dealing with sleepwear garments that are constructed from both knit and woven components?

Is the article classifiable under heading 6108, HTSUSA, as a knitted garment, or under heading 6208, HTSUSA, as a woven garment.

Is the garment eligible for preferential treatment under the North American Free Trade Agreement (NAFTA)?

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, the subject sample 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 top consists of both knit and woven components and therefore potentially renders the pajamas classifiable in heading 6108, HTSUSA, providing for knit garments or in heading 6208, HTSUSA, providing for woven garments. Should we determine that the pajamas should be classified according to the woven panties, they would be properly classified 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 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 both knit and woven, and the bottom is woven. Given that the good is described in part by two different headings, the determination of where it 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 garment at issue, composed of a top and a bottom, as two different articles, 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 top with both knit and woven components and a 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, 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/woven top and the woven bottom contribute and form the garment (pajamas), and generally both the top and bottom pieces create the pajama’s identity. However, upon examination of the articles before us it appears that it is a specific type of pajamas more in the line of a "negligee" or "lingerie" than ordinary women's pajamas. While we have generally considered the top and bottom of a pajama set to be equally important, the top in this case is clearly the predominant component. The lace on the top provides a visual and significant decorative effect and the sheer fabric comprises most of the visible surface. In comparison to the panties, the top is a much larger garment. The top also imparts the primary visible appeal and saleability to the pajamas. While the thong bikini panties are commonly found in many stores selling undergarments and sleepwear, the top of the garment is more unique and would be what would “draw” a consumer to purchase this particular item.

It is this office's opinion that the top of the lingerie at issue imparts the essential character to the article. By providing a visual and significant decorative effect, the lace bra top with sheer flyaway panels defines this garment. In addition, it is the top which is the "draw" which motivates the consumer to buy the merchandise. Next, we must determine whether the top is classified more appropriately in heading 6108, HTSUSA, or 6208, HTSUSA, depending on whether it is classified as a knit or woven garment.

Turning again to GRI 3 (b), composite goods consisting of different materials or made up of different components which cannot be classified by reference to 3(a), are classified as if they consisted of the material or component which gives them their essential character. We find that both the knit lace bra top and the woven flyaway chiffon panels are equally important. The consumer purchases this particular negligee because of the intricate lace work, which provides slightly more coverage, and the woven chiffon flyaway panels because of their transparent effect. In this instance, Customs believes that an essential character determination regarding the top of the pajamas is impossible to establish and therefore classification must be based on GRI 3(c).

Accordingly, classification of this garment is proper under heading 6208, HTSUSA, as a woven garment. The proper subheading for the babydoll pajamas is 6208.22.0000, HTSUSA, which provides for “Women's or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: Nightdresses and pajamas: Of man-made fibers.”

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 babydoll top is composed primarily of a woven polyester chiffon that is a product of Mexico. The bra portion is composed of a knitted lace that is a product of the United States. The back yoke of the garment is a power mesh that is a product of Mexico. The spaghetti straps and capping around the armholes are composed from woven polyester charmeuse that is a product of South Korea. There is an embroidered lace trim from China that covers the area where the knitted lace from the bra joins the woven chiffon. The thong panty is composed of a woven 100 percent polyester charmeuse that is a product of South Korea.

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.

The woven fabric which forms the panty, capping and straps does not meet the tariff shift rule. However, 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. As explained in this ruling, the sheer woven fabric of the top garment is the component that determines the tariff classification of the pajamas. Thus the remaining components are disregarded in determining whether the pajamas are eligible for NAFTA preferential tariff treatment. You state that the fabrics will be both cut to shape and assembled into pajamas in Mexico. Thus the pajamas meet the remaining requirement under the rule. Accordingly, we find that under the scenario provided the pajamas would qualify as originating goods for NAFTA preferential treatment.

HOLDING:

The subject merchandise is classifiable under subheading 6208.22.0000, HTSUSA, which provides for “Women's or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: Nightdresses and pajamas: Of man-made fibers.”

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

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 181.100(a)(2). This section states that each NAFTA ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 181.100 (a)(2), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted.

Sincerely,

Myles Harmon, Acting Director

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