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HQ 950688




March 10, 1992

CLA-2 CO:R:C:T 950688 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0037

John Pellegrini, Esquire
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Classification of a Women's Tank Top-Style Undershirt

Dear Mr. Pellegrini:

This is in reply to your letters on behalf of Associated Merchandising Corporation (AMC) concerning the classification of a woman's tank-style top. Our ruling on the matter follows.

FACTS:

Two samples were submitted. The first is identical to the garment ruled to be an outerwear top in Customs Ruling HQ 950364, dated January 17, 1992. After the issuance of that ruling, AMC discovered that the initial sample was made to the wrong specifications, so a second sample was submitted. The second sample is the same as the first, except that it is approximately five centimeters wider (41 cm. versus 36 cm. across the front panel from side seam to side seam on a garment labeled size M), and the curved armholes are approximately 2 cm. longer (measured on the curve from the top of the shoulder strap to the side seam at the bottom of the armhole).

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 or not the submitted sample is underwear, GRI 1 governs the classification of the subject merchandise.

The contents of Customs Ruling HQ 950364, dated January 17, 1992, are incorporated by reference into this ruling.

While the differences between the garment ruled on in HQ 950364 and the instant garment are not substantial, it appears that they are significant. Pictures submitted showing the garment being worn by someone it appears to fit strongly suggest that the garment would not be worn as an outerwear garment. In view of this, the underwear-type of material from which it is made, its general underwear appearance, and the advertising material submitted in support of the importer's claim that it is known commercially as underwear, we are convinced that this garment is primarily, if not solely used as underwear and, therefore, is classifiable as such.

HOLDING:

The submitted sample is classifiable under the provision for women's underwear T-shirts, tank tops, and similar garments, in subheading 6109.10.0037, HTSUSA, textile and apparel category 352, with duty at the rate of 21 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements. The designated textile and apparel category 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 that 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 available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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