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HQ 966602




December 8, 2003

CLA-2 RR:CR:TE 966602 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6109.10.0037; 6108.21.0010

Robert L. Eisen, Esq.
Christopher E. Pey, Esq.
Coudert Brothers, LLP
1114 Avenue of the Americas
New York, NY 10036-7703

RE: Modification of NY J82451, dated April 9, 2003; Women’s Knitted Cotton Garment Similar to a Tank Top; Subheading 6109.10.0037, HTSUS; Subheading 6109.10.0070, HTSUS; Tank-like Top Not Readily Identifiable Upon Physical Examination as Outerwear or Underwear Determined to be Underwear based on Design, Marketing and Advertising Information

Gentlemen:

This is in reply to your letter of July 22, 2003, on behalf of Barian Shipping Company, Inc., and J.W.E. Silk, Inc., requesting reconsideration of New York Ruling Letter (NY) J82451, dated April 9, 2003.

In NY J82451, Customs and Border Protection (CBP) classified a woman’s garment similar to a tank top under subheading 6109.10.0070 of the Harmonized Tariff Schedule of the United States (HTSUS) and a bikini panty under subheading 6108.21.0010, HTSUS.

In your opinion, CBP erroneously classified the tank-like top. You contend that it is properly classified under subheading 6109.10.0037, HTSUS. You concur with CPB’s classification of the panty under subheading 6108.21.0010, HTSUS.

We note that you asked us to return the sample that you submitted. However, we would like to retain the sample for our records.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 1993), notice of the proposed revocation of NY J82451 was published on November 5, 2003, in Vol. 37, No. 45 of the customs bulletin. CBP received one comment. A discussion of the comment will be set forth in the General Notice of Revocation and Modification, which will be published in the customs bulletin on December 24, 2003.

FACTS:

In your letter, you describe the merchandise as follows:

The Style No. K2107048 camisole has a U-shaped front and rear neck line, rounded arm holes and approximately 1¼ inch shoulder straps, all outlined with decorative trim. It has a four-inch placket with a laced closure and a hemmed bottom. The garment is made of 100% cotton interlock fabric and is only made in one color, red with black trim, with a size range of small to large.

The garment at issue is imported together with a matching bikini panty made from the same fabric, with matching trim. The camisole is designed, marketed and sold with the matching panty as an underwear set. The panty is also made of the identical 100% cotton interlock fabric and like the camisole only comes in one color, red with black trim.

The camisole and panty are not available separately, and will be imported together in sealed polybags, and will be shipped to the final purchaser in the same bags used to import them. . . .

ISSUE:

Is the garment similar to a tank top that is sold with a matching panty classifiable as underwear under subheading 6109.10.0037, HTSUS, or as outerwear under subheading 6109.10.0070, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs taken in order.

Additionally, the Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The ENs are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of CBP to follow, whenever possible, the terms of the ENs when interpreting the HTSUS.

There is no disagreement as to the classification of the subject merchandise at the 8-digit level. Subheading 6109.10.00, HTSUS, provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton.” The sole issue in this case is whether the merchandise is classified under subheading 6109.10.0037, HTSUS, or 6109.10.0070, HTSUS. Subheading 6109.10.0037, HTSUS, provides for women’s or girls’ underwear. Subheading 6109.10.0070 provides for women’s or girls’ “other” non-underwear garments. Thus, the crux of the question in this case is whether the garments are underwear or outerwear.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988) (“Guidelines”), define “underwear” as follows:

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 predominately worn as underwear.

In past rulings, Customs has pointed out that the merchandise itself may be strong evidence of use. Citing Mast Industries v. United States, 9 CIT 549, 552 (1985), aff’d 76 F. 2d 1144 (1986), citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). In that regard, the instant garment is not readily identifiable as either underwear or outerwear. The garment is ambiguous. When presented with a garment which is ambiguous and not clearly recognizable as underwear or outerwear, Customs will consider 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, such as purchase orders, invoices, and other internal documentation. See HQ 960866, July 15, 1999; HQ 960865, dated July 15, 1999; HQ 963442, July 7, 1999; HQ 960864, July 2, 1999; HQ 960862, dated July 2, 1999; HQ 961978, dated June 17, 1999; HQ 961185, dated June 11, 1999; HQ 960906, June 3, 1999; HQ 960926, February 25, 1999; HQ 960925,

February 23, 1999; HQ 960928, February 15, 1999; HQ 961116, November 20, 1998; HQ 960690, September 25, 1998; HQ 959843, May 6, 1998; HQ 961036, April 27, 1998; HQ 960797, February 19, 1998; HQ 960442, August 4, 1997; HQ 960391, April 22, 1997; HQ 957762, April 28, 1995; HQ 957615, May 24, 1995; HQ 957004, November 23, 1994; HQ 956351, July 7, 1994. and HQ 956350, July 5, 1994.

It should be noted that CBP 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, CBP recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, 16 Ct. Int’l Trade 407 (1992).

Consideration of marketing information, and the design and construction details of the garments are instructive in determining whether or not they are principally used as outerwear or underwear. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation of goods of the same class or kind or merchandise. See HQ 953390, dated June 1, 1993, in which CBP stated that a tank-styled pullover classifiable in subheading 6109.90.1065 and “sold with a matching panty could be viewed as somewhat persuasive evidence that it is indeed underwear.”

In the instant case, the tank-like top is marketed and sold with a matching panty. The top and panty will be imported together in sealed polybags, and will be shipped to the final purchaser in the same bags. The advertising literature pictures the garment in an Avon catalogue as a “Knit Lace-Up Cami & Panty.” It is described as a “[s]oft, comfortable cotton interlock cami & bikini panty set with beautiful, sexy fit.” The advertisement depicts the “cami and panty” set next to a “Flirty Halter Teddy.” Finally, the garments are sold exclusively to Avon’s “Innerwear” department. See St. Eve International v. United States, 267 F. Supp. 2d 1371 (Ct. Int’l Trade, May 15, 2003), wherein the court held that camisoles sold with matching underpants were recognized, advertised and sold as underwear and were classified under subheading 6109.10.0037, HTSUS.

Although the manner in which an article is designed, manufactured, and marketed is not dispositive of tariff classification, Customs finds it to be persuasive in this case when determining the classification of the ambiguous tank-like top. See Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 1986); St. Eve International, Inc. v. United States, 11 Ct. Int’l Trade 224 (1987); and Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995).

HOLDING:

NY J87771 is MODIFIED.

The garment similar to a tank top is classifiable under subheading 6109.10.0037, HTSUS, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton: Women’s or girls’: Other: Other.” It is dutiable at the general column one rate at 17 percent ad valorem, and the textile category is 352.

The matching panty was correctly classified under subheading 6108.21.0010, HTSUS, which provides for ”Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Briefs and panties: Of cotton: Women’s.” It is dutiable at the general column one rate at 7.6 percent ad valorem, and the textile category is 352.

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 your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of CBP, which is available for inspection at your client’s local CBP office.

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, your client should contact your local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the customs bulletin.

Sincerely,

Myles B. Harmon
Director, Commercial Rulings Division

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