CLA-2 RR:TC:TE 959808 NLP
Harold M. Grunfeld, Esq.
Suzanne B. Barnett, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman LLP
245 Park Avenue
33rd Floor
New York, NY 10167-0002
RE: Classification of women's garments; union suits; Long johns;
underwear vs. outerwear; Heading 6114; HRL 957746; NYRLs
808142, 804689, 875312 and 899816
Dear Mr. Grunfeld and Ms. Barnett:
This is in response to your request for reconsideration of
New York Ruling Letter (NYRL) A86505, dated September 6, 1996,
which dealt with the classification of a women's garment under
the Harmonized Tariff Schedule of the United States (HTSUS). You
have provided us with a sample of the garment at issue, as well
as other garments that will be sold with the subject garment.
FACTS:
The article at issue is style VST 2005, a woman's garment
constructed from 100% cotton waffle knit fabric. It is a full
length garment that runs from the neck to the ankles. It
features a 6 button partial front opening with right over left
closure that extends to the waist, a V-neckline, long sleeves
with rib knit cuffs, rib knit cuffs at the ankles, a rib knit
sweat patch sewn to the inside of the nape of the neck and picot
edging around the neck opening, placket and cuffs. The garment
has no waistband. Style VST 2005 will be imported from Hong
Kong, China and Macau. The garment will have a hang tag attached
that describes the garment as follows:
"Victoria's Secret Country Long Jane Pure Cotton Softly Styled
and Delicately Finished". The back of the tag states that " This
garment has been made from cotton to ensure comfort and ease of
care. To compensate for shrinkage this garment is cut slightly
larger to ensure the best possible fit after washing. Please
select your normal size."
In New York Ruling Letter A86505, dated September 6, 1996,
this garment was classified in subheading 6114.20.0052, HTSUS,
which provides for "Other garments, knitted or crocheted: Of
cotton: Coveralls, jumpsuits and similar apparel: Other:
Women's."
It is your position that this garment is ladies underwear
and is classifiable in subheading 6114.20.0060, HTSUS, which
provides for "Other garments, knitted or crocheted: Of cotton:
Other: Women's or girls'." You contend that the subject garment
is classifiable as underwear which is in accord with the manner
in which they are designed, marketed and sold. In support of
your position you submit the following arguments:
1. The United States Court of International Trade in
examining the issue of sleepwear in Mast Industries,
Inc. v. United States, 9 CIT 549 (1985),
aff'd 786 F.2d 1144 CAFC (1986), determined that
garments which are
designed, manufactured, marketed and sold as nightwear
are properly
classifiable as sleepwear for tariff purposes. 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 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.
2. Victoria's Secret Stores (VSS) is well recognized
in the industry as a retailer
of women's intimate apparel.
3. The garment is designed as ladies underwear to be worn
under outer garments.
It has been designed as long underwear for warmth and
comfort underneath other clothing. The union suit is
close fitting and made with fabric that is comfortable. It was tailored on an underwear fit model for
comfort against the body.
4. The union suit will be consistently identified as
underwear throughout the entire product development
cycle. The garment will be invoiced, ordered and sold as underwear. The purchase orders reflect that the garment is
being purchased as underwear for VSS and is part of an
underwear grouping that includes a long underpant and a
long-sleeved style undershirt.
5. The garment will be marketed and sold as women's
underwear. The garment is intended to be sold in a
folded condition and tied with a VS country ribbon. The front of the hang tag reads as follows: "Victoria's Secret
Country
Long Jane Pure Cotton Softly Styled and Delicately
Finished".
6. The garment was manufactured in factories that
primarily produce underwear and other intimate apparel
for VSS.
ISSUE:
What is the tariff classification of the subject garment?
LAW AND ANALYSIS:
Classification of goods under the HTSUS 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]."
Your argument that the Court in Mast emphasized that
garments which are designed, manufactured, marketed and sold as
nightwear are properly classifiable as sleepwear is well taken,
yet it should similarly be noted that the Court also stated that
"the merchandise itself may be strong evidence of use", citing
United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817
(1963). Therefore, when ruling on similar merchandise in the
past, Customs' policy has been to carefully examine the physical
characteristics of the garments in question. When this has not
proven substantially helpful, Customs will consider 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, such as purchase orders, invoices, and other
internal documentation. 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 CIT 407 (1982). With these points in mind,
Customs has reviewed your claim that these garments are
classifiable as underwear and we are unpersuaded.
Customs has examined the submitted sample, and we believe
that the garment may be best characterized as "loungewear". The
construction or styling of the garment does not make it
especially suitable as underwear or indicate that it would be
principally used as such. In fact, the fabric, design, styling
and construction of this garment makes it suitable for various
purposes, including lounging in the home. Additionally, certain
features would seem to detract from a classification of the
garments as a union suit and support classification as a
coverall. Specifically, these features include the lack of a
full button front opening and a drop seat which are features
normally found on union suits. We note that it is your position
that the lack of the "trap door" feature is to make the garment
more comfortable and less bulky under clothing. While the lack
of this feature alone will not eliminate a garment from
classification as a union suit, it is the lack of the combination
of both features that lead us to the conclusion that the garments
are impractical for use as underwear.
In a variety of Customs rulings, it appears that garments
classifiable as union suits have certain common features that
made them practical for use as underwear. For example, in NYRL
808142, dated April 10, 1995, we classified a man's 100% cotton
knit union suit in subheading 6114.20.0055, HTSUS. This garment
was full length ( neck to ankles) with long sleeves and a left
over right front buttoned opening that extended from the neck to
the crotch and it featured a rear buttoned opening from waist
level to the crotch. In NYRL 804689, dated December 22, 1995, a
toddler's union suit was classified in subheading 6114.20.0060,
HTSUS. It was also a full length garment with long sleeves and a
front buttoned opening that extended from the neck to the crotch.
The garment also featured a rear buttoned opening from waist
level to the crotch. It had no waistband and featured rib knit
cuffs. In NYRL 875312, dated July 6, 1992, Customs classified a
50% cotton/ 50% polyester thermal waffle knit suit with a fleeced
inner surface in subheading 6114.30.3060, HTSUS. This garment
was full length with long sleeves, it had rib-knit cuffs on the
sleeves and legs and a front buttoned opening that extended from
the neck to the crotch. It had no waistband and a one button
vertical seat flap. Finally, in NYRL 899816, dated July 15,
1994, we classified a men's garment in subheading 6114.20.0055,
HTSUS. The union suit was a full length (neck to ankles)
garment with long sleeves and a front buttoned opening that
extended from the neck to the crotch. The garment had no
waistband and featured ribbed knit cuffs. While it appears that
the union suit in NYRL 899816 did not have a rear opening, the
front buttons clearly extended from the neck to the crotch.
While we note that some of the features on the instant
garment are similar to some of the features on the above garments
(the rib knit cuffs and fabric), the lack of the drop seat and
full button front opening do not make the subject garment well
suited for use as underwear. The lack of these items make it
difficult for the wearer to get in and out of the garment when
they are outside (or when they are inside) and avoid getting cold
in the process. This is the opposite rational for purchasing a
union suit as underwear- they are designed to keep the wearer as
warm as possible when they are outside.
Moreover, we note that the garment at issue is referred to
as the "Long Jane", which is a common term for long underwear.
The claim is made that the garment is inspired by traditional
men's long johns. Long johns are defined in Underwear the
Fashion History , by Allison Carter, as a type of union suit
named after John L. Sullivan. Generally, this type of garment
is a masculine garment worn for warmth, consisting of waist to
ankle-length woolen underpants.
The subject garment is a one-piece garment.
The Textile Category Guidelines contain the following
statements with regard to underwear:
The term "underwear" refers to garments which are
ordinarily worn
under other garments and are not exposed to view when
the wearer is conventionally dressed for appearance in
public, indoors or out-of-doors.
Whether or not a garment is worn next to the body of
the wearer is not a determinant;. . .
Thus, the Guidelines requirement for a garment to be
underwear is whether a garment is ordinarily worn under other
garments and not exposed to view. Given the lack of certain
features that union suits ordinarily have, it is not necessarily
true that the subject garment would be worn under other garments.
Though the fabric does provide warmth and comfort, this type of
fabric is not limited to garments that are worn under other
garments. This type of fabric is more and more frequently being
used for sleepwear and outerwear garments. In addition, given
some of the detailing, for example, the V- neckline and the picot
edging on the wrist, ankles and placket, this garment is
acceptable to being viewed when the wearer is dressed indoors.
You have argued that the subject garment is designed,
manufactured and will be marketed and sold as underwear. The
marketing that was presented consists of the statement that the
garment will be sold in the VSS stores, where it will be sold in
a folded condition and will be tied with a VSS Country ribbon.
It will also be displayed with a thermal long-sleeved undershirt
and long underpant. It will also have a hangtag that has been
described above. The garment was originally conceived as part of
the Underware group and you referred us to Headquarters Ruling
Letter (HRL) 957746, dated June 23, 1995, which, inter alia,
dealt with the classification of the "Underware union suit".
The subject garment is distinguishable from the "Underware
union suit" classified in HRL 957746. The garment in HRL 957746,
referred to as style VSU 2002, was a one-piece teddy styled
garment made from a translucent finely knit fabric which only
reached mid-thigh. We also stated that it was a union suit
styled garment and it had a full button front. [Emphasis added].
In addition, the garment was marketed under the specialized
"underware" line, while the subject garment has a Country
Authentic label on the inside of its neck. Another distinction
between HRL 957746 and this case is that in HRL 957746 the
marketing information submitted was much more extensive. For
example, copies of mailers, in-store displays and point of
purchase printed materials that were utilized to promote the
garments as underwear were submitted for our review in HRL
957746. This type of information is lacking in the present
case.
Furthermore, you refer to purchase orders that you claim
demonstrate that these articles are marketed and sold as
underwear. As stated above, these documents can be self-serving
and are not conclusive of a garment's classification. Moreover,
we note that the purchase order references the item as Class 81-
which refers to separate tops, not underwear. In addition, in
the space listed as "SEASON", the word "CONTINUOUS" is listed,
not the fall or winter seasons. This suggests to us that the
garment is to be worn on a year round basis. Long johns and
union suits are garments that one would wear in the colder months
of the fall and winter.
In various catalogue advertisements we have found garments,
similar to the instant garment, depicted in a context which
suggests loungewear or sleepwear usage. For example, in the 1993
Christmas J. Crew catalogue a women's garment, that appears very
similar to the instant one, is depicted and the heading on the
page reads "Our ribbed loungewear for in bed and out." "An
embodiment of utter relaxation." Moreover, you have stated that
the subject garment may be sold in Victoria's Secret Catalogues,
as well as in its stores, and that the garment will be displayed
in the underwear section. We note that a similarly styled union
suit is depicted in an August 95 Victoria's Secret catalogue. It
is also identified as a Long Jane union suit and the copy reads:
"inspired by the men's classic but made for a woman in soft
cotton thermal." The page states: COUNTRY CLASSICS FOR THE
WEEKEND. It appears that five of the six garments on the two
pages are clearly sleepwear.
Moreover, various catalogues advertise union suits and each
of the union suits depicted by different manufacturers features a
full button front and a drop seat. Those features make the item
practical as a cold weather underwear garment. For example, in
the 1995 Fall and Winter JC Penney catalogue union suits are
described as follows: "Long sleeve, long leg union suits. One-button seat, In white only." In the L.L. Bean 1996 Christmas
catalogue, an underwear union suit for men and women is described
in the following manner: "one-piece convenience, full-buttoning
seat in back". In the catalogue a man is depicted wearing the
garment and it appears to have a full button front opening.
Thus, it is our position that the subject garment is not
practical as an undergarment. The fact that a garment could
have a fugitive use or uses does not take it out of the
classification of its primary use. The design, construction and
function of an article is determinative of its classification,
whether or not there is an incidental or subordinate function.
You have argued that nothing about the design or construction of
the garment precludes its use as underwear. This may be true.
However, the counter argument that nothing about the design or
appearance makes it unsuitable for use as outerwear is equally
true. Taking into consideration all of the information before
us, especially the garment itself, Customs believes that this
garment belongs to a class of garments known as loungewear or
leisurewear. This garment is not designed for the principal or
primary use as underwear, though it may be used for that purpose.
Customs believes that this garment is properly classified as an
outwear garment in subheading 6114.20.0052, HTSUS.
HOLDING:
Style VST 2005 is classifiable in subheading 6114.20.0052,
HTSUS. The rate of duty is 11.4% ad valorem and the textile
category code is 359.
NYRL A86505 is hereby affirmed.
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 negotiations 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 issuance
of the U.S. Customs Service, which is updated weekly and is
available 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, you should contact your local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division