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HQ 957132



February 28, 1995

CLA-2 CO:R:C:T 957132 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.90.4020; 6109.90.4010

Alan R. Klestadt, Esq.
Suzanne B. Barnett, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 245 Park Avenue, 33rd Floor
New York, NY 10167

RE: Modification of DD 868592; tariff classification of a woman's silk knit garment; heading 6109, HTSUSA, provides not only for T-shirts, but also for singlets, tank tops and similar garments

Dear Mr. Klestadt and Ms. Barnett:

On December 3, 1991, our New York office issued to you, on behalf of your client Terramar Sports, District Decision letter 868592, which held that a silk knit garment featuring a drawstring waist was classifiable as a pullover garment in heading 6110, HTSUSA. This office has had occasion to review that ruling and has determined that it is in error.

FACTS:

The merchandise in question, style 91-3023-5, is a woman's 100 percent silk knit pullover featuring a drawstring waist, long sleeves and ribbed sleeve cuffs and neckline. DD 868592 classified the garment as a pullover in subheading 6110.90.0082, HTSUSA.

ISSUE:

Whether the presence of a drawstring waist precludes the instant garment from classification in heading 6109, 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). GRI 1 provides that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, taken in order.

Heading 6109, HTSUSA, provides for T-shirts, singlets, tank tops and similar garments, knitted or crocheted. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the scope and content of the tariff at the international level. The EN to heading 6109, HTSUSA, state:

The term "T-shirts" means lightweight knitted or crocheted garments of the vest t ype, of cotton or man-made fibre, not napped, nor of pile or terry fabric, in one or more colours, with or without pockets, with long or short close-fitting sleeves, without buttons or other fastenings, without collar, without opening in the neckline, having a close-fitting or lower neckline (round, square, boat-shaped or V-shaped). These garments may have decoration, other than lace, in the form of advertising, pictures or an inscription in words, obtained by printing, knitting or other process. The bottom of these garments, usually hemmed, is never made with a ribbed waistband, drawstring or other means of tightening.

This heading also includes singlets and other vests. (Emphasis added).

"Singlet" is defined as:
an athletic jersey; undershirt. Webster's Ninth New Collegiate Dictionary at 1100, (1983)

"Vest" is defined as:
a man's sleeveless undershirt; a knitted undershirt for women. Webster's Ninth New Collegiate Dictionary at 1312, (1983)

One comment was received in opposition to the modification of DD 868592. That comment stated that the classification of the silk knit garment in heading 6109, HTSUSA, is due to an erroneous interpretation of the Explanatory Notes to heading 6109, HTSUSA, and that the term "T-shirt" refers to both an outerwear and underwear garment. Support for this position is stated to be the language of the EN defining "T-shirts" as garments of the "vest type", the latter expression being
a term more commonly used in the British vernacular, finding its parallel in the word "underwear" in the United States. This being so, i.e., the subject garment being an underwear garment, it is within the parameters of T-shirts of the vest type and therefore, the drawstring prohibition is applicable to the undergarments in issue. As the garment is precluded from classification in heading 6109, HTSUSA, by virtue of the drawstring, it is properly classifiable in heading 6110, HTSUSA.

It should be clear that the EN to heading 6109, HTSUSA, not only provide for T-shirts, of the outerwear and underwear type, but in addition to and separate from T-shirts, the heading provides for singlets and vests. As such, as per their definitions, "singlet" and "vest" are underwear-type shirts and are consequently prima facie provided for at the international level in heading 6109, HTSUSA. Customs has ruled on virtually identical merchandise on numerous times and has determined that these underwear type garments are provided for in heading 6109, HTSUSA (See HQ 951315, dated April 9, 1993 and HQ 951074, dated April 24, 1992).

The subject garment which has a bottom drawstring, is not intended as what is commercially recognized as a T-shirt. It is on the other hand, the class or kind of merchandise that is commonly and commercially known in the United States as long underwear. Furthermore, based on a copy of Terramar's 1992 Fall/Winter catalog, the basis of the firm's business is underwear and the catalog clearly promotes the merchandise as such:

THE TERRAMAR STORY:

Over 12 years ago, Terramar was the first company to develop and introduce silk knitted underwear to America and since that time our THERMASILK underwear has enjoyed a worldwide reputation as the leading brand...

Introduced in 1989, the new TRANSPORT underwear is now considered one of the most comfortable, and most technically advanced high performance underwear available...

To match its state-of-the-art product technology, Terramar has also developed some new and exciting merchandising aids including new product packaging and professionally designed floor racks all designed to help you see more Terramar underwear.

The subject silk knit garment fits squarely within the express terms of the heading and the EN to heading 6109, HTSUSA. The subject garment is not a T-shirt, per se, but it is a singlet or vest, or what is commonly referred to as an underwear type garment. Thus, based upon the garment, earlier Customs rulings, and the garment's recognition commonly and commercially as underwear, the subject garment is classifiable as a similar garment, i.e., undershirt, in heading 6109, HTSUSA..

HOLDING:

The subject garment, referenced style number 91-3023-5, is classifiable in subheading 6109.90.4020, HTSUSA, which provides for, inter alia, singlets, tank tops and similar garments, knitted or crocheted, of other textile materials, other, women's or girls': containing 70 percent or more by weight of silk or silk waste. The applicable rate of duty is 15.6 percent ad valorem and the textile quota category is 739.

When imported as a men's garment, it is classifiable in subheading 6109.90.4010, HTSUSA, which provides for, inter alia, singlets, tank tops and similar garments, knitted or crocheted, of other textile materials, other, men's or boys': containing 70 percent or more by weight of silk or silk waste. The applicable rate of duty is 15.6 percent ad valorem and the textile quota category is 738.

Sincerely,

John Durant, Director
Commercial Rulings Division

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