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NY C88637


July 2, 1998

CLA-2-61:RR:NC:TAB:354 C88637

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0060

Ms. Michele R. Markowitz

Mr. Alan R. Klestadt

Grunfeld, Desiderio, Lebowitz & Silverman

245 Park Avenue 33rd Floor

New York, NY 10167-3397

RE: The tariff classification of a women's cotton tank top from Sri Lanka.

Dear Ms. Markowitz & Mr. Klestadt:

In your letters dated April 13 and May 28, 1998, you requested a classification ruling on behalf of Mast Industries, Inc.

The submitted garment, Style VSU 6528, is tank style top constructed with a 2X2 ribbed knit 95% cotton 5% spandex fabric. The capping on the 1 inch wide shoulder straps extends to the rounded front and back necklines and to the arm holes. The garment has a hemmed bottom that reaches below the waist. The upper portion of the garment has a sewn in liner which is attached at the neckline a side seams. The loose bottom of this liner has a 3/4 inch wide sewn on elastic band. You have indicated that the fabric weight is 260 grams per square meter. You also indicate that the garment will be offered for sale in white, black, green, blue, berry and a multi-colored striped pattern.

You assert that the garment is classifiable in HTS 6212.90.0010 under the tariff provision for other body supporting garments. As an alternative classification you suggest HTS 6109.10.0037 which is a provision for underwear.

To support your argument you cite HRL 957746 issued on behalf of Mast, which ruled on a sleeveless garment. We dispute that Style VSU 3106 in that ruling is significantly similar to the tank top at issue. Style VSU 3106 is a sleeveless upper body garment with a sweat patch at the back of the neck. That garment lacks a liner and is not considered a tank top.

Although you claim that Style VSU 6528 was designed to be worn as underwear we believe it is indistinguishable from garments sold and used as outerwear. The use of 260 gram fabric and 2X2 rib knit construction is not unique to garments designed and marketed as underwear. We note that this fabrication is more commonly used for outerwear garments. That fact that the garment is close fitting does not preclude the garment from being classified as outerwear. Most knit tank styled outerwear garments are designed to be and worn close fitting. The low front and rear rounded neckline is common to tank tops and in this case provides sufficient coverage.

You assert that the liner is this garment functions as a sports bra and therefore the item is classifiable in heading 6212 as an other body supporting garment. This garment's liner may be distinguished from a sports bra in several ways. A sports bra's sole purpose is to provide support and shape to the bust especially during physical activity. Some sports bras extend slightly below the bust, most do not. The loose footed liner is this garment provides an additional layer, much like an undergarment, rather than providing support or shape. As such the liner cannot be considered a brassiere component. Hence the garment is not considered a composite article and no essential character determination is required.

Although you claim the garment will be marketed as part of Victoria's Secret "Underware" line it is not dispositive of the tariff classification. In HRL 960391, a girls' flannel boxer short was classified as outerwear, part of the reasoning follows:

In past rulings Customs has stated that the crucial factor in the classification of a garment is the garment itself. As stated by the court in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), "the merchandise itself may be strong evidence of use". However, when presented with a garment which is ambiguous and not clearly recognizable as sleepwear, underwear, loungewear or outerwear, Customs will look to other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, Slip Op. 92-80.

In the Regaliti, Inc. V. U.S. court case the plaintiff argued that garments designed, identified on invoices and advertised as tights, were in fact tights and should be classified as such. The court factored in the overall appearance of the item and discounted the marketing and advertising claims, recognizing that even though the plaintiff identified the garment as tights, others would not. Similarly, in this case we believe that even though your submission identifies the garment as a body-supporting undershirt, the average consumer would not distinguish the garment from an outerwear tank top.

The applicable subheading for Style VSU 6528 will be 6109.10.0060, Harmonized Tariff Schedule of the United States (HTS), which provides for T-shirts, singlets, tank tops and similar garments, knitted or crocheted: of cotton, women's or girls': other: tank tops: women's. The duty rate will be 19.2 percent ad valorem.

Style VSU 6528 falls within textile category designation 339. Based upon international textile trade agreements products of Sri Lanka are subject to quota and the requirement of a visa.

The designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. 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.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Brian Burtnik at 212-

466-5880.

Sincerely,


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