CLA-2 R:C:T 957746 CAB
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.
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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
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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:
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[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.
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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.
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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