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HQ 088554


May 10, 1991

CLA-2 CO:R:C:T 088554 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.22.0020; 6109.90.1090

Mr. Tommy Lai
Second Secretary
Hong Kong Economic and Trade Affairs
Hong Kong Economic and Trade Office
British Embassy
1233 20TH Street, N.W., Suite 504
Washington, D.C. 20036

RE: Women's underwear tops are properly classifiable as similar to tank tops.

Dear Mr. Lai:

This is in reply to your letter of January 22, 1991, concerning the tariff classification of ladies' nylon under- shirt and matching panties, produced in Hong Kong, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your case number 50/90, Charming Shoppes.

FACTS:

The merchandise at issue consists of two styles of wo- men's matching top and panties, 083038 and 083039, identical except for color, of 100% Raschel knit openwork construction. The top has a V-shaped front neckline which overlaps three inches above the 1" wide elastic bottom band. The integral shoulder straps are 1" wide. The neckline and armholes are finished with " elastic edging. The panties are or similar construction, with a 1" wide elastic waistband and leg open- ings finished with a " elastic edging.

ISSUE:

Whether the tops are considered brassieres under the HTSUSA?

LAW AND ANALYSIS:

Heading 6212, HTSUSA, provides for body-supporting gar- ments, including, inter alia, brassieres and similar articles, whether or not knitted or crocheted. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classifica- tion experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading include there- in "[b]rasires of all kinds."

The Customs Service periodically issues the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories. The Guidelines, most recently published at 53 Fed. Reg. 52563 (Dec. 28, 1988), CIE 13/88 (Nov. 23, 1988), note that since certain types of garments are closely related in use, the Guidelines "are to be used as an aid in determining the commercial designation and, hence, the classi- fication of an article." Used as such, they "represent the present position of the Customs Service."

The Guidelines, at 22, state that garments are not con- sidered body-supporting if the primary purpose of the elastic- type yarns "is to cause the garment to fit snugly under outer garments." We feel that, with respect to the instant merchan- dise, this consideration is applicable. The knit construction of these tops is much too flimsy to support the breasts. Therefore, these tops are not brassieres under the HTSUSA.

Heading 6108, HTSUSA, provides for, inter alia, women's or girls' slips, petticoats, briefs, panties and similar articles. It has been argued that the tops, which are clearly underwear, should be classified in this heading. We disagree.

The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that:

... 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 GRIs, taken in order.

Heading 6108, HTSUSA, provides for, inter alia, women's or girls' slips, petticoats, briefs, and panties. The Explan- atory Notes to this heading merely names these articles "un- derclothing." Heading 6108, therefore, prima facie provides for underwear at the international level. Heading 6109, HTSUSA, provides for, inter alia, women's or girls' t-shirts, singlets, tank tops, and similar garments.

The EN to this latter heading includes for classification therein singlets and other vests. Webster's New World Dictionary (1988) defines singlets as a "man's undershirt esp. a sleeveless one," and vests as "girls undershirts." See also Funk & Wagnalls New Standard Dictionary of the English Lan-
guage (1939), defining 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 in heading 6109. This, in addition to the fact that there is NO provision in heading 6108, HTSUSA, for upper body undergarments, causes us to conclude that any underwear heading contention is incorrect.

The Guidelines, at 13, defines tank tops garments reach- ing the waist which are:

... sleeveless with oversized arm- holes, with or without a significant drop below the arm. The front and the back may have a round, V, U, scoop, boat, square or other shaped neck which must be below the nape of the neck. The body of the garment is supported by straps not over two inches in width reaching over the shoulder. The straps must be attached to the garment and not be easily detachable. Bottom hems may be straight or curved, side-vented, or of any other type normally found on a blouse or shirt, including blouson or drawstring waists or an elastic bottom. The follow- ing features would preclude a garment from consideration as a tank top:

1) pockets, real or simulated, other than breast pockets;

2) any belt treatment includ- ing simple loops;

3) any type of front or back neck opening (zipper, but- ton, or otherwise).

It is clear that, but for the waist-reaching requirement, the instant garments are constructed similarly to tank tops.

The Guidelines continue by stating that "tops" are:

... those garments which, except for one or two distinctions in construction, would have fit into any of the above listed breakouts. For example, those garments which are commonly referred to as mid- riffs, tube tops, crop tops, or halter tops do not reach the waist, and are con- sidered tops.

Heading 6114, HTSUSA, which provides for, inter alia, knitted tops, does not cover underclothes of the type at issue. It is our opinion, therefore, that the correct classi- fication of these garments remains under heading 6109, HTSUSA, as women's garments similar to (but not) tank tops. See HRL 085685 of December 10, 1990.

HOLDING:

As a result of the foregoing, the instant merchandise is
classified as follows:

Panties
under subheading 6108.22.0020, HTSUSA, textile category 652, as women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crochet- ed, briefs and panties, of man-made fibers, other, wom- en's. The applicable rate of duty is 16.6 percent ad valorem.

Tops
under subheading 6109.90.1090, HTSUSA, textile category 639, as t-shirts, singlets, tank tops and similar gar- ments, knitted or crocheted, of other textile materials, of man-made fibers, women's or girls', other. The appli- cable rate of duty is 34 percent ad valorem.

The designated textile and apparel category may be subdi- vided into parts. If so, visa and quota requirements applica- ble to the subject merchandise may be affected. Since part categories are the result of international bilateral agree- ments 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 issu- ance 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 annota- tion (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,


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