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HQ 952266


November 5, 1992

CLA-2 CO:R:C:T 952266 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.90.1090

Tommy Lai
Second Secretary
Hong Kong Economic Office
British Embassy
1233 20th Street, N.W. suite 504
Washington, D.C. 20036

RE: Classification of two styles of women's cotton, nylon and spandex knit undergarments; undershirt; tank top; heading 6109, HTSUSA; not supportive enough to be a bra under heading 6212, HTSUSA.

Dear Mr. Lai:

This is in response to your letter of July 15, 1992, requesting, on behalf of the importer, Mast Industries (Far East) Inc., a binding ruling classification for two styles of women's knit undergarments. Two samples were submitted to this office for examination.

FACTS:

Two styles were submitted for classification. Both styles, referenced VSD 017 and VSD 034, are identical except for their color and the pattern of raschel used. VSD 017 has a floral pattern and VSD 034 is solid white. Both tops have V-shaped front necklines and 2-1/4 inch wide elastic bottom bands made of raschel lace. The lace portion is made from 83 percent nylon and 17 percent spandex. The other knit fabric is 90 percent cotton and 10 percent spandex. The straps on these garments are 1/4 inch wide and are non-adjustable.

ISSUE;

Whether the subject merchandise is classifiable as women's undergarments under heading 6109, HTSUSA, or as brassieres under heading 6212, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The threshold question is which component of the garments at issue controls classification: the bust area which is comprised of 90 percent cotton or the man-made fiber raschel? GRI 3(b) provides the relevant analysis when an article is prima facie classifiable under two or more subheadings in the nomenclature:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.

Explanatory Note VIII to GRI 3(b) states:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In the instant case, we are of the opinion that the raschel imparts the essential character to the garments at issue. The raschel lace not only covers a large portion of the garments' surface area, it also gives the garments an extremely delicate, feminine look which very well may provide the motivating impetus for the purchase of these garments. Accordingly, the subject merchandise will be classified as garments comprised of man-made fibers.

The next issue is whether the garments at issue are classifiable as women's undershirts under heading 6109, HTSUSA, or as brassieres under heading 6212, HTSUSA?

Heading 6109 provides for knitted T-shirts, singlets, tank tops and similar garments. The Explanatory Notes to heading 61.09, HTSUSA, include "singlets and other vests" among the types of garments classifiable within this section of the nomenclature. We note that the word "vest" is synonymous with "underwear" and is a term more commonly used in the British vernacular. The
garments at issue are similar to undershirts in that they are designed to be worn under outerwear, on the upper portion of the body. Thus, heading 6109, HTSUSA, by its terms, encompasses these articles.

Heading 6212, HTSUSA, provides for brassieres and other body supporting garments. The Fashion Dictionary, by Mary Brooks Picken, 1973, defines "brassiere" as "a close-fitting undergarment shaped to support the bust." Similarly, Webster's New Collegiate Dictionary, 1977, defines "brassiere" as "a women's close-fitting undergarment with cups for bust support." We recognize that although these garments resemble bras in appearance, and that the undergarment industry has undergone tremendous change in the last few years which has resulted in many new, non-traditionally styled brassieres, the basic prerequisites for classification as a brassiere have not changed: brassieres must be designed to be body-supporting garments. That is the purpose for which they exist.

The articles at issue are bra-like in appearance, but do not possess any support features which would render them classifiable as brassieres. The straps are non-adjustable, the fabric used in the cups is too loose to be supportive, and there are none of the traditional characteristics of brassieres present such as underwires, hook and eye closures, stays, etc... . The cups do not hold the bust firmly in place, nor are they molded or fitted except to the extent that there is shirring underneath each cup. As these garments do not provide body support, classification under heading 6212, HTSUSA, is precluded.

HOLDING:

Style VSD 017 and VSD 034 are classifiable under subheading 6109.90.1090, HTSUSA, which provides for women's or girls' T- shirts, singlets, tank tops and similar garments, knitted or crocheted, of man-made materials, dutiable at a rate of 34 percent ad valorem. The textile quota category is 639.

The designated textile and apparel categories may be subdivided into parts. If so, the 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 the importer 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 nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should contact his local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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