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HQ 966234




September 2, 2003

CLA-2 CR:TE 966234 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6108.22.9020, 6109.90.1065

Christopher E. Pey, Esq.
Coudert Brothers LLP
1114 Avenue of the Americas
New York, NY 10036-7703

RE: Reconsideration of NY ruling letter I89033, dated December 13, 2002; Classification of women's lingerie garments (a singlet/panty set)

Dear Mr. Pey:

This letter is in response to the December 20, 2002, letter from Ms. Johanna Jin of J.W.E. Silk, requesting reconsideration of NY classification ruling letter I89033, dated December 13, 2002, of two women's lingerie garments described as a singlet/panty set, style number K2107042/877. The garments are manufactured in China. Samples of the garments at issue were submitted. In your correspondence dated July 24, 2003, you enclosed a copy of a Avon's purchase order, a development sheet for the garments at issue, a sample copy of J.W.E. Silk's invoice for the product, which prices the set as a single unit, and an advertisement for the garments at issue.

FACTS:

Style K2107042/877 consists of two pieces, a tank styled singlet and a full cut or boy leg panty.

The singlet is constructed with translucent 100% nylon raschel knit lace-like fabric. The singlet features a three-panel front, side seams, a rounded neckline at the front and back, 1-1/2 inch shoulder straps, elasticized trim at the neckline and arm openings, and a hemmed bottom.

The panty is constructed with translucent 100% raschel knit lace-like fabric for the upper front panel and two upper back panels. The lower leg panels are made of translucent 94% nylon and 6% spandex raschel lace-like fabric. The
panty features side seams, scalloped leg openings, and an elasticized scalloped waistband.

In NY I89033 the singlet, style K2107042/877, was classified in subheading 6109.90.1065, HTSUSA, the provision for tank tops and singlets, while the panty, style K2107042/877, was classified in subheading 6108.22.9020, HTSUSA, the provision for briefs and panties.

It is your client's contention that the two garments are being imported, marketed and sold as a sleepwear set. In support thereof, an Avon catalogue showing an article said to be similar to the one before us (it is said that as style K2107042/877 is still under development, there is no advertising page for it), shot in a bedroom environment. Also submitted was a Victoria's Secret catalogue, showing a similar item advertised as a set and under the lingerie section. A sample copy of Avon's purchase order for the translucent singlet/panty set showing two garments described as "black lace tank & boy short" ordered as a set was provided. Also enclosed was a sample of J.W.E. Silk's invoice for the product which you state also prices the set as a single unit and describes the articles as "lace tank boy short". You also confirm that your client imports the cami/panty set in sealed poly bags, and the garments are sold only as a set through its catalogue. We note that it is stated that inasmuch as the garments are very sheer, consumers will not wear them outside.

ISSUE:

Are the submitted garments classifiable as underwear, or sleepwear of heading 6208, HTSUSA?

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 and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In classification, the most persuasive evidence is the garment itself. The court in Mast Industries, Inc. v. United States, 9 CIT 549, 552, (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963), pointed out that "the merchandise itself may be strong evidence of use."

Underwear is defined as: "Underclothes." The Fashion Dictionary, by Mary Brook Picken, at 397. Underclothes are defined therein at 396 as: "Garments worn under other clothes, including those worn next to skin." In Webster's II, New Riverside University Dictionary, 1984, at 1259, underwear is defined as "Clothing worn under the outer clothes and next to the skin."

The difficulty presented by the garments at issue is that based upon a summary visual examination, they are not clearly underwear or sleepwear, but could be used for either purpose. However, a closer look at the garments before us reveal that they contain certain features generally associated with women's underwear, i.e., a three-panel front and elasticized trim at the waist, neckline and arm openings. The garments are designed to have a close fit and are made with soft, drapeable fabric. The garments exhibit no features which would preclude their use as underwear.

In addition to the primary factor, i.e., the physical suitability of the subject garments to use as underwear garments, the additional information submitted by you supports such a classification determination. The Avon Product Development specification sheet that was submitted describes the garments as a lace tank and boy short, it shows the company as Avon Apparel, the garments' category as innerwear and the segment as daywear, other.

As stated in HRL 950503 of June 19, 1992, the classification determination basically turns on whether the subject garments are designed and suitable for wear under outer clothing as underwear and there is a reasonable expectation that they will be principally used as such, or whether the garments are designed and suitable for wear in bed and there is reasonable expectation that they will be principally used in that manner.

Based upon the garments themselves and taking into consideration the additional information submitted, Customs believes that the garments at issue are designed for use as underwear garments and that there is a reasonable expectation that they will be principally used as such. While they could be used as sleepwear, such use would be a fugitive use in our view and not the use for which the garments are designed, marketed and sold.

Legal Note 13, Section XI, HTSUSA, 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.

The ENs to Chapters 61 and 62 HTS, provide that for "application of Note 13 to Section XI, garments of different headings are to be classified in their own headings even if put up in sets for retails sale. This, however, does not apply to garments put up in sets which are specifically mentioned in the heading texts, for example, suits, pajamas, swimwear." Accordingly, the garments comprising the samples, even if sold as a set, are classifiable separately.

HOLDING:

The camisole or singlet is classifiable in subheading 6109.90.1065, HTSUSA, the provision for "T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers: Women's or girls': Tank tops and singlets: Women's." The general column one rate of duty is 32.2 percent ad valorum and the textile restraint category is 639.

The panty is classifiable in subheading 6108.22.9020, HTSUSA, the provision for "Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Briefs and panties: Of man-made fibers: Other: Women's." The general column one rate of duty is 15.7 percent ad valorum and the textile restraint category is 652.

NYI89033 is affirmed.

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 your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB) which is available now on the Customs and Border Protection Web site at www.cbp.gov.

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 its local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director

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