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HQ 950364




January 17. 1992

CLA-2 CO:R:C:T 950364 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0060

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

RE: Classification of a Woman's Tank Top Style Garment-- Outerwear vs. Underwear

Dear Mr. Lai:

This is in reply to your letter of September 16, 1991, concerning certain garments imported at the port of Chicago by Merchandise Ventures International Incorporated. Our ruling on the matter follows.

FACTS:

The submitted sample is a sleeveless pullover with shoulder straps approximately 1«-inches wide at their narrowest point. It is made from a fine knit cotton fabric and has a U-shaped neckline with a burnt-out lace insert at the lowest portion of the U. The garment extends below the waist and has a hemmed bottom. The armholes and neckline are finished with a knit fabric capping, the visible portion of which is 3/8-inch. The capping is secured with white yarn using a two-needle top stitch. The merchandise is stated to be imported with matching briefs as underwear sets. While not stated, we understand that the merchandise is imported in white and in various colors.

ISSUE:

The issue presented is whether the subject merchandise is classifiable as underwear or as outerwear. LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes. The competing provisions are subheading 6109.10.0037, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for underwear garments falling within the purview of women's or girls' cotton knit T-shirts, singlets, tank tops, and similar garments, and subheading 6109.10.0060, HTSUSA, which provides for women's nonunderwear knit cotton tank tops. Accordingly, since the classification of the merchandise is dependent on whether it is underwear, GRI 1 governs the classification of the subject merchandise.

This office has received at least three classification requests on this same merchandise and, in each instance, the importer contends that the subject garments are underwear and classifiable in subheading 6109.10.0037. Accordingly, we will address all the points raised in the submissions before us. Those points are:

1. The garment cannot be worn with decency because of the lightweight fabric.
2. The armholes are oversized and the side panels of any bra worn underneath these garments would present an unsightly appearance.
3. The stitching holding the capping in place presents and unfinished appearance.
4. The lace inserts cause the garments to comport with the criteria for underwear contained in the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, 53 F.R. 52563, December 28, 1988, hereafter referred to as "the Guidelines". 5. The garments are advertised as underwear and sold only in underwear and lingerie departments.

In regard to the first two contentions, this office first attempted to determine the validity of those positions by viewing the garments on a mannequin, but the results were indefinite. Accordingly, the garments were modeled by a real person. The white sample, without an undergarment, were more revealing than most women would wear. A purple sample, however, proved to be sufficiently opaque to allow it to be worn without an undergarment. A properly sized (for the model) white garment was put on over a bra having extra wide side panels. The armholes appeared to be normal size and the side panels of the bra were not visible. The white garment, when worn with a bra, and the purple garment, with or without a bra, presented a modest outerwear tank top appearance. In addition, the white sample may be worn, with or without an undergarment, with a partially or fully unbuttoned shirt or sweater.

The stitching on the capping, while appearing unsightly or unfinished to some women, is considered by others to present a desirable appearance. It is a styling feature and appears on a number of outerwear garments.

The Foreword to the Guidelines states:

These guidelines do not purport to take into account every possible fabric, construction, and styling combination, since, in wearing apparel especially, each season brings new styles. * * * Certain types of garments are so closely related in use, though, that the corresponding category designations seem to overlap. In such situations it should be remembered that the guidelines are to be used as an aid in determining the commercial designation and, hence, the classification of an article. (at page 52563)

Accordingly, it should be remembered that the Guidelines are just that, guides to be utilized in determining the commercial designation of articles. They are not immutable rules and should not be blindly followed.

Bearing this in mind, the Guidelines contain the following statements with regard to underwear.

The term "underwear" refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors. Whether or not a garment is worn next to the body of the wearer is not a determinant * * *

It should be noted that in distinguishing underwear, it is generally agreed that sleeveless tops with lace inserts or lace edgings are predominantly worn as underwear. * * *

Thus, the Guidelines' requirement for a garment to be underwear is whether a garment is ordinarily worn under other garments and not exposed to view. The paragraph concerning sleeveless tops with lace inserts is subordinate to that requirement and expresses a conclusion, not forcefully or definitively worded, that is intended to assist in the classification of borderline garments. As such, its applicability must be weighed on a case-by-case basis, evaluating each sample individually.

In this instance, Customs has been presented with underwear/loungewear catalogs, each containing a representation of garment similar to the subject merchandise. None of them specifically identify those garments as underwear. On the other hand, our National Import Specialist for this area has submitted an advertisement of a similar garment being worn as outerwear apparel. Also, the Office of Textiles and Apparel, Department of Commerce, has submitted an advertisement showing a similar garment also being worn as outerwear.

In addition, we have informally surveyed several female employees within our own office and found a relatively even split in opinion concerning whether the purple and white samples were outerwear or underwear.

HOLDING:

Based on the above, we conclude that there is not sufficient evidence for this office to reverse the classification of the responsible Customs import specialist, which was made with the concurrence of the National Import Specialist, of the subject merchandise in the subheading for women's tank tops, 6109.10.0060, HTSUSA.

Sincerely,

John Durant, Director

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