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HQ 952756


February 2, 1993

CLA-2 CO:R:C:T 952756 SK

CATEGORY: CLASSIFICATION

TARIFF NO.'s: 6108.92.0005; 6109.90.1075

Richard J. Housman
James J. Boyle & Co.
371 Allerton Avenue
So. San Francisco, CA 94080

RE: Classification of thermal top and bottom garments; long johns; headings 6108 and 6109, HTSUSA; insulated underwear.

Dear Mr. Housman:

This is in reply to your letter of September 29, 1992, on behalf of Hanna Andersson Corp., requesting the tariff classification of two styles of thermal garments. Samples were enclosed for Customs' examination.

FACTS:

The articles submitted for classification consist of two garments referenced "Item 0715 - Top - Insulated Long Johns" and "Item 0715 - Bottom - Insulated Long Johns." Both the top and bottom are constructed from a diamond patterned, quilt-like, triple-ply fabric which is comprised of 58 percent polyester and 42 percent cotton. The catalogue indicates that the outer layer of cotton is designed to absorb moisture while the inner layer of polyester is designed to both insulate and wick away moisture from the skin.

The long sleeved pullover top features a hemmed bottom and rib knit cuffs on the sleeves and around the neckline. The matching bottom has an enclosed elasticized waist, rib knit ankle yn

The catalogue indicates that the children's sizes range from 90 centimeters through 140 centimeters which correspond to a 34 through 57 inch range. These articles are unisex.

ISSUE:

What is the proper classification for quilted thermal tops and bottoms referred to as long johns?

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's), 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 garments at issue are often referred to commercially as "long johns" which is a common term for long underwear. Our examination of the subject merchandise yields a finding that these garments are well-suited for use as underwear. The use of rib knit cuffs at sleeve, ankle and neckline, elasticized waist and roomy leg and arm extensions all provide an easy means of pulling the garments on and off and great comfort. The use of thermal fabric and flatlock seams are also indicative of these garments' status as underwear.

Headings 6108 and 6109,HTSUSA, provide for various types of underwear. Customs previously distinguished between the types of underwear provided for in heading 6108 and those of heading 6109, HTSUSA. See Headquarters Ruling Letter (HRL) 089280, dated May 13, 1991. In that ruling this office determined that undergarments are divided into two categories: those which are worn below the waist of heading 6108, HTSUSA, and those which are worn above the waist of heading 6109, HTSUSA. Accordingly, Item 0715-Top is prima facie classifiable under subheading 6109.90.1075, HTSUSA, which provides for women's or girls thermal undershirts of man-made fibers. Item 0715-Bottom is classifiable under heading 6108, HTSUSA, which provides for women's or girls' underpants of man-made fibers. Although the articles at issue are unisex, they are classifiable as women's or girls underwear pursuant to the General Explanatory Notes to Chapter 61, HTSUSA, which state that when an article cannot be identified as either a male or female garment, it shall be classified in the appropriate heading for women's or girls' garments.

HOLDING:

Item 0715-Top, is classifiable under subheading 6109.90.1075, HTSUSA, which provides for "T-shirts, singlets, tank tops and similar garments, knitted or crocheted: of other textile materials: of man-made fibers... women's or girls': thermal undershirts," dutiable at a rate of 34% ad valorem with a textile quota category of 652.

Item 0715-Bottom is classifiable under subheading 6108.92.0005, HTSUSA, which provides for "women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: other: of man-made fibers... underwear: underpants," dutiable at a rate of 17% ad valorem with a textile quota category of 652.

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 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 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

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