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HQ 951205


June 16, 1992

CLA-2 CO:R:C:T 951205 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0070; 6110.20.2075; 6104.62.2030; 6104.62.2010

Mr. Michael Singer
R.H. Macy's Corporate Buying
11 Penn Plaza
New York, NY 10001

RE: Reconsideration of New York Ruling Letter (NYRL) 869653; classification of women's trousers and shorts; classification of women's tank top; and other pullover garments

Dear Mr. Singer:

This letter is in response to your request for reconsideration of New York Ruling Letter 869653, dated February 20, 1992, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), concerning the tariff classification of ladies knitted garments from Taiwan.

FACTS:

Four sample garments were submitted for examination. Each sample garment is made of 94 percent cotton and 6 percent spandex knit fabric. Style 365 is a pullover upper body garment without sleeves. This garment has a neckline which is formed by raschel openwork trim and a hemmed bottom. The 2 inch wide straps and bodice are comprised of lace fabric.

Style 366 is a long-sleeved pullover upper body garment. The neckline is formed by raschel openwork trim approximately 2 inches in width.

Style 385 is a form-fitting pair of trousers with a 2 inch- wide raschel openwork band at the waist. The trousers contain a gusset crouch.

Style 389 is a pair of form-fitting shorts. The garment contains an elasticized waistband and raschel openwork trim at the bottom of each leg.

ISSUE:

Whether the garments in question are classifiable as women's underwear, tights, or as women's outerwear?

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRIs) of the HTSUSA. 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 are to be classified in accordance with subsequent GRIs taken in order.

Heading 6109, HTSUSA, provides for, inter alia, women's or girls' T-shirts, singlets, tank tops, and similar garments. Style 365 is clearly recognizable as an upper body garment that is similar to a tank top. It is comprised of cotton and spandex knit fabric. The garment also has capping around the armholes, a lace neckline, and a hemmed bottom. Thus, the garment is classifiable in Heading 6109, HTSUSA.

Heading 6110, HTSUSA, provides for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. The importer asserts that Style 366 should be classified as women's underwear. The importer focuses on the lace neckline to substantiate his underwear classification claim. However, an upper body garment containing lace alone, does not automatically indicate that the garment is underwear. Recent fashion trends clearly show upper body garments with lace necklines being worn under jackets or alone as outerwear. Style 366, which is a long sleeved pullover upper body garment is classifiable in Heading 6110.

In Headquarters Ruling Letter (HRL) 088454 dated October 11, 1991, the classification of garments referred to as leggings and the distinction between form-fitting garments for the lower torso and legs were discussed extensively. Customs also examined the meaning of the term "tights" and determined that tights are garments which are partially outerwear, intended to be exposed, in part, and covered, in part. See, Children's Hose Inc. v. United States, 55 Cust. Ct. 6, C.D. 2547 (1965).

More recently in the case of Regaliti, Inc. v. United States, Slip Op. 92-80 (Ct. Int'l Trade, decided May 21, 1992), the court determined that form-fitting combination leg and torso coverings are classifiable in Heading 6104 as general streetwear bottoms. The court also concluded that the items at issue were not commonly known as "tights". They were not similar to hosiery nor where they marketed as hosiery. Instead, the court maintained that the garments at issue in Regaliti were "pants" which are included in the general listed term of "trousers" in Heading 6104.

Both Styles 385 and 389 are form-fitting lower body garments similar to the garments at issue in the aforementioned cases. Despite the fact that these garments are considered form-fitting, they are still trousers. The garments are constructed with a fabric that is substantial enough so that the wearer does not need to wear an outer garment over top of them. Even though both styles have gussets, which is common in underwear, the gussets in this instance are not lined. As a result, a wearer would generally need an undergarment under styles 385 and 389. Thus, styles 385 and 389 are classifiable in Heading 6104.

HOLDING:

The garments at issue were correctly classified in NYRL 869653. Style 365 is classifiable under subheading 6109.10.0070, HTSUSA, which provides for knitted T-shirts, singlets, tank tops and similar garments, knitted or crocheted. The rate of duty is 21 percent and the textile category is 339. Style 366 is classifiable under subheading 6110.20.2075, HTSUSA, which provides for sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. The rate of duty is 20.7 percent and the textile category is 339. Style 385 is classifiable under 6104.62.2010, HTSUSA, which provides for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted. The rate of duty is 16.7 percent and the textile category is 348. Style 389 is classifiable under subheading 6104.62.2030, HTSUSA, as women's cotton shorts. The rate of duty is 16.7 percent and the textile category is 348.

The designated textile and apparel 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 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 updated weekly and is available for inspection 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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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