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HQ 084865


September 22, 1989

CLA-2 CO:R:C:G 084865 CB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0037; 6108.21.0010

Beth C. Brotman, Esq.
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, New York 10004

RE: Reconsideration of NYRL 833716

Dear Ms. Brotman:

This ruling letter is in response to your letter of June 15, 1989, on behalf of McCrory Stores, requesting a reconsideration of the classification ruling issued by the New York Region under the Harmonized Tariff Schedule of the United States (HTSUSA), for women's knit cropped undershirts.

FACTS:

The inquirer submitted a sample crop top and bikini set. The crop top sample at issue, style 10181, is a ladies' finely knit, sleeveless, 100 percent cotton crop top. It extends from the shoulders to below the chest but it does not reach the waist. The garment has 2 inch wide shoulder straps, a scoop neckline, and an elasticized waistband at the bottom. There are also narrow elastic strips of fabric around the neck and armholes.

NYRL 833716 classified the merchandise in the provision for "other garments, knit..., of cotton, tops, women's," in subheading 6114.20.0010, HTSUSA. The bikini was classified in subheading 6108.21.0010, HTSUSA, which provides for "women's... briefs and panties, knit...of cotton,". The ruling explained the difference in classification between the two styles by saying "the appearance and structure of this garment (the top) indicate that it would not be worn as underwear." The importer has requested a reconsideration of the crop top rulling.

ISSUE:

Whether the crop top was properly classified in heading 6114, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that the starting point is the terms of the headings of the tariff and any relevant section or chapter notes.

NYRL 833716 classified the subject crop top in subheading 6114.20.0010, HTSUSA, which provides for other garments, knitted or crocheted, of cotton, tops. Heading 6114, HTSUSA, covers garments which are not included more specifically in other headings within the Chapter. The importer has requested a reconsideration of the New York ruling on the grounds that the fabric is too sheer for use as outerwear and that the merchandise is advertised and sold as a crop top and bikini set. The importer also provided, as supporting evidence, a circular which advertises the merchandise as under garments and a sworn affidavit from the buyer of intimate apparel stating that the merchandise is bought and sold as intimate apparel.

Customs has previously ruled that classification of merchandise cannot be governed on the basis of which department within a store the merchandise is sold. However, it can be taken into consideration along with any other evidence which supports the importer's position. In this particular instance, the importer has adequately documented his claim that the subject merchandise is underwear. The advertising circular clearly shows the crop top and bikini being sold as an underwear set and the sworn affidavit indicates that the merchandise was purchased as part of the intimate apparel line. Additionally, the narrow elastic strips of fabric around the crop top's neck and armholes are typical of what is used as underwear.

Based on the information submitted, the subject merchandise is classifiable in subheading 6109.10.0037, HTSUSA, as underwear. The bikini remains classified in subheading 6108.21.0010, HTSUSA.

HOLDING:

The subject ladies' knit crop top is classifiable in subheading 6109.10.0037, which provides for T-shirts, singlets, tank tops and similar garments, knitted or crocheted, women's or girls', underwear. The textile category is 352 and the rate of duty is 21 percent ad valorem.

The bikini underwear is classifiable under subheading 6108.21.0010, HTSUSA, which provides for women's or girls' briefs and panties, knitted or crocheted, of cotton. The rate of duty is 8.1 percent ad valorem and the textile category is 352.

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.

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 issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Your sample will be returned to you under separate cover.

NYRL 833716 is revoked in part pursuant to 19 CFR 177.9(d).

Sincerely,

John Durant, Director

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