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HQ 084110


July 31, 1989

CLA-2 CO:R:C:G 084110 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0037

Mr. Jerry Braff
Ardent Intimates, Ltd.
2950 Park Newport
Newport Beach, CA 92660

RE: Classification of women's garments

Dear Mr. Braff:

This is in reply to your letter of March 30, 1989, requesting reconsideration of NYRL 835887 of February 10, 1989, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of two 100 percent cotton knit garments. The first is a women's camisole-type top with a French neck and narrow shoulder straps. The second garment is a women's sleeveless spencer top with two inch shoulder straps. Both styles extend from the neck and shoulders to below the waist. In addition, both have lightweight, sheer fabric which stretches when worn, scattered pointill openwork, and bottoms which have no extra stitching or capping.

In NYRL 835887, we held these garments to be underwear, under subheading 6109.10.0037, HTSUSA. You claim that proper classification should lie in heading 6114, as other knit tops.

ISSUE:

Whether the merchandise at issue is considered underwear or outer wear under HTSUSA?

LAW AND ANALYSIS:

Subheading 6114.20.0010, HTSUSA, provides for women's or girls' tops, of cotton. The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, Nov. 23, 1988, at 11 (hereinafter "Textile Guidelines") state that:

[g]arments included in this category [(knit shirts and blouses, women's and girls', where you claim the instant merchandise belongs)] are of the type which are normally worn against the body or over underwear for appearance in public.

Subheading 6109.10.0037, HTSUSA, provides for women's or girls' knit underwear. The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's, taken in order.

Subheading 6109.10.0037, HTSUSA, is a use provision. Conse- quently, the heading under which the subject merchandise will be classified will be controlled by the use in the United States at, or immediately prior to, the date of importation of goods of the class or kind to which the subject merchandise belongs. The controlling use is the principal use -- the use which exceeds any other use. Additional U.S. Rule of Interpretation 1(a), HTSUSA. The actual use of certain shipments of merchandise will not dictate a classification controlled by principal use.

The Textile Guidelines, supra, at 25, provide:

Category designation: 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; * * *

It should be noted that in distinguishing under- wear, it is generally agreed that sleeveless tops with lace inserts or lace edgings [sic.] are predominately worn as underwear.

It is our opinion that, based upon the construction and appearance of the two subject garments (i.e., the sheerness of the fabric and the scattered openwork), these garments will predominately be worn as underwear. Although you state that the merchandise is marketed and worn both as underwear and outer wear, U.S. Additional Rule of Interpretation 1(a), supra, ordains classification based upon the principal use; in this case, as underwear.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6109.10.0037, HTSUSA, textile catego- ry 352, as t-shirts, singlets, tank tops and similar garments, knitted or crocheted, of cotton, women's or girls', underwear. The applicable rate of duty is 21 percent ad valorem.

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 applicability of any import restraints or requirements.

Pursuant to section 177.9, Customs Regulations (19 C.F.R. 177.9), the ruling letter of February 10, 1989 is affirmed in conformity with the foregoing.

Sincerely,

John Durant, Director
Commercial Rulings Division

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