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HQ 966832




December 12, 2003

CLA-2 RR:CR:TE 966832 KSH

TARIFF NO.: 6109.10.0037

Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy-five Broad Street
New York, NY 10004

RE: Tariff classification of knit camisoles

Dear Ms. Cumins:

This is in response to your letter of September 5, 2003, on behalf of your client O’Bryan Brothers Inc, in which you request a binding ruling on the tariff classification of a tank-styled camisole constructed of fine rib knit 100% cotton fabric. A sample was submitted for our examination.

FACTS:

The submitted sample is identified as Style 276840. This garment is a tank-styled camisole constructed with a fine rib knit 100% cotton fabric. The garment features a lace-like trim at the V-neck front, lace-like edging on the armholes and rear neckline, side seams, shoulder straps approximately 2” in width and a hemmed bottom.

The importer submits that the physical characteristics of the garment, the environment of sale and advertising and marketing material support the contention that the garment is underwear.

ISSUE:

Whether the knit camisole garment is classifiable as underwear under subheading 6109.10.0037, HTSUSA, or as a tank top under subheading 6109.10.0060, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

The competing provisions are subheading 6109.10.0037, 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 non-underwear knit cotton tank tops.

In St. Eve Int’l Inc. v. United States, 267 F. Supp. 2d 1371 (2003), the Court of International Trade dealt with the classification of camisoles as underwear garments in subheading 6109.10.0037, HTSUSA, or as tank tops in subheading 6109.10.0060, HTSUSA. The Court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum) to determine that the camisoles at issue therein were properly classified as undergarments of subheading 6109.10.0037, HTSUSA. Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. Among the detailed findings set forth by the court were the reputation of the importer in the trade for underwear, intimate apparel, and sleepwear; the camisoles are marketed as underwear; stores offer the camisoles for sale in their lingerie and intimate apparel department; the camisoles are not offered for sale as sportswear; the camisoles are sold year round; the camisoles are offered in the lingerie sections of retailer’s catalogues and; the camisoles are sold with matching underwear. Carborundum, supra. The court determined that the camisoles are designed, knit, stitched together, imported, consigned and sold principally in the women's intimates or underwear departments of walk-in retail stores and classified the garments in subheading 6109.10.0037, HTSUSA, as undergarments.

You present the following persuasive factors in support of classification of the camisole at issue as underwear: (1) your client is exclusively engaged in the marketing and distribution of underwear and sleepwear; (2) the camisole is only sold to the intimate apparel buyers of large department and chain stores and displayed in these retail establishments alongside other intimate apparel articles; (3) the garment is only offered and sold as underwear; (4) the camisole is sold throughout the year; (5) advertisements for the camisole appear alongside other underwear garments and; (6) the camisole is sold with matching underwear.

Based upon the evidence presented and the factors set forth in St Eve, supra, the camisole is classified in subheading 6109.10.0037, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton: Women’s or girls’: Underwear.”

HOLDING:

The camisole is classified in subheading 6109.10.0037, HTSUSA, as “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton: Women’s or girls’: Underwear.” The General Column 1 Rate of Duty is 17 percent ad valorem and the textile category is 352.

The designated textile and apparel category 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 bi-lateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, available on the CBP website at www. cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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