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HQ 085685


December 10, 1990

CLA-2 CO:R:C:G 085685 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0037; 6212.10.1020; 6212.10.2020

Mr. Alan Klestadt
Grunfeld, Desiderio, Lebowitz & Silverman Counselors at Law
12 East 49TH Street
New York, NY 10017

RE: HRLs 086190 and 085431 affirmed. Women's underwear type shirts constructed similarly to tank tops are properly classified as more similar to tank tops than to underwear of heading 6108. Brassieres; bralets; Gitano; support; lace

Dear Mr.Klestadt:

This is in reply to your letter of January 29, 1990, and subsequent correspondence submitted, with respect to the classi- fication of women's upper body wear, produced in Hong Kong, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client North American Underwear Co., 89-2239-5(12)I.

FACTS:

The merchandise at issue consists of two completely differ- ent types of women's upper body wear, described below. The first group of samples was submitted with the original request for a binding ruling by the Hong Kong Economic and Trade Office, and the second set was presented to us at conference.

The first group of samples consists of 2 finely knit light- weight women's tops, identical but for color, composed of 55% cotton and 45% polyester fibers. The garment, Style J5409, features approximately 11/2" wide shoulder straps, a U-shaped neckline, and oversized armholes. The garment does not reach to the vicinity of the waist, nor does it contain any type of tightening mechanism. The garment features a tag labeled "GITANO NDERWEA," featuring women modeling the instant tops with match- ing panties.

Style J5409 was the subject of HRL 085431 CMR of December 20, 1989. HRL 085431, later modified by HRL 086190 of January 8, 1990, due to a typographical error, was issued to your firm in response to your request that we reconsider, inter alia, NYRL 839336 of May 3, 1989. The instant request, therefore, with respect to the first group of samples, is seeking reconsidera- tion of HRL 085431.

The second group of samples consists of 4 pairs of matching Gitano~ bra-let style top and panties to our knowledge not previously ruled upon. Only the bra-lets are the subject of this ruling.

These bra-lets, all 55% rayon, 45% cotton, are described as follows:

1. Red pointelle with elastic band - style J5410
2. White rib knit with elastic band - style J8502
3. Black and white knit polka dot with elastic lace-like band - style J3144
4. Black and white knit stripe with elastic lace-like band - style J3417.

No closure apparatus exists. From the construction of the tops, it is clear that the elastic bands lie on the wearer at a point just touching the lower curve of the breast.

ISSUE:

Whether the garments are considered underwear under the HTSUSA?

LAW AND ANALYSIS:

Style J5409 (Sample Group 1)

In HRL 085431 of December 20, 1989, as modified by HRL 086190, we classified this merchandise for North American Under- wear Company (NAU). In HRL 085431, we determined that

[t]he Gitano tops at issue are sold exclu- sively in the sleepwear/lingerie departments.

Customs has previously ruled that clas- sification 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 import- er's position. ...[S]worn affidavits indi- cate the tops are "sold exclusively as under- wear to underwear/lingerie departments" and are intended to be sold as underwear that complement NAU's panties. Since the garments are designed, manufactured, and marketed for use as underwear and it has been recognized "that most consumers tend to purchase and use a garment in the manner in which it is mar- keted," Mast Industries v. United States, 9 CIT 549, 551 (1985), aff'd, 786 F. 2d [sic.] 1144 (1986), we believe these tops are more properly classified as underwear similar to T-shirts, singlets and tank tops of heading 6109, HTSUSA.

Additionally, Customs has already ruled on a garment similar to those at issue here in HRL 084865 of September 22, 1989. In that ruling, the garment, a women's crop top, was classified as women's underwear....

Based upon the above-stated rationale, we classified Style J5409 under subheading 6109.10.0037, HTSUSA, as knitted cotton t- shirts, singlets, tank tops and similar garments, women's or girls, underwear.

Your latest argument advocates that since it remains undis- puted that Style J5409 is advertised, bought, sold, and used as underwear, it must be classified in the ~underwear heading,~ 6108. 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 Explanatory Notes 1/ (EN) to this heading merely names these articles "under- clothing." Heading 6108, therefore, prima facie provides for underwear at the international level.

Footnote 1/ The Explanatory Notes 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 classification 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. End Footnote 1/

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." Funk & Wagnalls New Standard Dictio- nary of the English Language (1939), defines singlets as "under- wear," 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 addi- tion to the fact that there is NO provision in heading 6108, HTSUSA, for upper body undergarments, causes us to conclude that your ~underwear heading~ contention is incorrect.

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 commer- cial designation and, hence, the classification of an article." Used as such, they "represent the present position of the Customs Service."

The Guidelines, at 13, defines tank tops garments reaching the waist which are:

... sleeveless with oversized armholes, 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 sup- ported 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, includ- ing blouson or drawstring waists or an elas- tic bottom. The following features would preclude a garment from consideration as a tank top:

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

2) any belt treatment including simple loops;

3) any type of front or back neck opening (zipper, button, or otherwise).

It is clear that, but for the waist-reaching requirement, the instant garments are constructed quite 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 common- ly referred to as midriffs, tube tops, crop tops, or halter tops do not reach the waist, and are considered 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 classification of these garments remains under subheading 6109.10.0037, as women's cotton garments similar to (but not) tank tops, underwear. HRL 086190 and HRL 085431 are consequently affirmed.

Footnote 2/ It should be recognized that, had the statistical breakout for underwear not existed, the correct classification would still have been under heading 6109; specifically, 6109.10.0070, HTSUSA, as an other, other. End Footnote 2/

Styles J5410, J8502, J3144, & J3147 (Sample Group 2)

Heading 6212, HTSUSA, provides for body-supporting garments, including, inter alia, brassieres and similar articles, whether or not knitted or crocheted. The Explanatory Notes to this heading include therein "[b]rasi res of all kinds." The
Guidelines, at 22, however, states that garments are not consid- ered body-supporting if the primary purpose of the elastic-type yarns "is to cause the garment to fit snugly under outer gar- ments."

It is our opinion that the elastic yarns within the lower bands of the garments are included to provide support, and, along with the construction of the garment body, do provide support, to the wearer. In addition, it is unlikely that the wearer of these garments would also don a more conventional brassiere underneath the bra-let. Although you state that the "subject garments do not possess any support construction such as an elastic composi- tion or wire foundation," this pronouncement fails to rebut our findings that the bra-lets do indeed furnish the requisite support. The garments are therefore classifiable as body-sup- porting garments.

HOLDING:

As a result of the foregoing, the instant merchandise is classi- fied as follows:

Style J5409 (Sample Group 1)
under subheading 6109.10.0037, HTSUSA, textile category 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.

Sample Group 2

Styles J5410 & J8502
under subheading 6212.10.2020, HTSUSA, textile category 649, as brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or cro- cheted, brassieres, other, of man-made fibers. The applicable rate of duty is 18 percent ad valo- rem.

Styles J3144 & J3147

IF CONTAINING LACE
under subheading 6212.10.1020, HTSUSA, tex- tile category 649, as brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted, brassieres, containing lace, net or embroidery, of man- made fibers. The applicable rate of duty is 32 percent ad valorem.

IF NOT CONTAINING LACE
under subheading 6212.10.2020, HTSUSA, tex- tile category 649, as brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted, brassieres, other, of man-made fibers. The applicable rate of duty is 18 percent ad valorem.

The designated textile and apparel category may be subdivid- ed 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
Commercial Rulings Division

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