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HQ 967044




May 25, 2004

CLA-2 RR:CR:TE 967044 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0037

Maribeth Vanderford, CHB
Controller of Customs Compliance and Distribution Fruit of the Loom
One Fruit of the Loom Drive
P.O. Box 90015
Bowling Green, KY 42102-9015

RE:     Classification of certain knit camisoles; Headquarters Ruling Letter (HQ) 966807 dated March 11, 2003

Dear Ms. Vanderford:

This letter is in response to your letter of February 19, 2004, in which you requested reconsideration of New York Ruling Letter (NY) J88591, dated October 2, 2003, which pertains to the classification of a woman’s tank top, identified as style number D03-084. In your request, you provided new information about this garment, which you believe affects its classification.

As this information is new, we find NY J88591, which was based on information provided at the time of its issuance, to be correct. Accordingly, your request for reconsideration is denied. The new information concerning how the goods are designed, marketed and sold are addressed in this ruling letter.

FACTS:

The new information that you submitted for our consideration references New York Ruling Letter (NY) J88591 dated October 2, 2003, in which the
merchandise was classified in subheading 6109.10.0060, HTSUSA, which provides for "tank tops knitted or crocheted: Of cotton: women’s." You also indicated in your request that the original request of NY J88591 contained an unpackaged sample of the garment, which did not show how the goods would be sold and used. In the instant request, you submitted a packaged sample that shows how the goods are marketed and sold as underwear garments.

The description of the subject garments in NY J88591, dated October 2, 2003, reads as follows:

Style #D03-084, is a woman’s tank top constructed from 95% cotton, and 5% spandex knit fabric. The garment extends below the waistline and features elasticized spaghetti straps, a modified U-shaped neckline, and a hemmed bottom. The garment also has elastic around the armholes and the neckline.

In the instant request, you provided new information by stating that the packaged sample, identified as style 2DCAMI (which is a prototype for style #D03-084), is marketed as an underwear garment. You stated that the goods are sold only in the intimate apparel department of retailers that stock the garment. You also indicated that buyers who purchase this style from your company are employed by the intimate apparel division of their respective companies and that women’s bikini, brief, hi-cut and hipster underwear styles are sold as complements to the subject garment.

You also referred to the recent modification of substantially similar merchandise in Headquarters Ruling Letter (HQ) 966807 dated March 11, 2004. In this decision, CBP classified two styles of tank-styled camisoles: style 176040, constructed of fine rib knit 100% cotton fabric; and style 176440, a camisole with spaghetti shoulder straps constructed with a fine rib knit 100% cotton fabric in subheading 6109.10.0037, HTSUSA.

ISSUE:

      Whether the knit camisole garments are classifiable as underwear under subheading 6109.10.0037, HTSUSA, or as tank tops 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 referred to as “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.

In the instant case, you provide new information for our consideration which supports classification of the merchandise as underwear: (1) The goods are purchased by buyers of intimate apparel retail divisions that sells the goods exclusively in intimate apparel departments; (2) packaging shows the subject camisole is marketed as an underwear garment and; (3) you state that the goods are sold in the intimate apparel department in retail stores along side other intimate apparel articles; and (4) other complementary women’s bikini, brief, hi-cut and hipster underwear styles are sold with the subject camisoles.

Based upon the evidence presented and the factors set forth in St. Eve, supra, the subject camisoles are 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 subject garments are 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." The General Column One Rate of Duty is 16.5 percent ad valorem and the textile category is 352. A copy of this ruling and NY J88591 should be attached to each entry of the subject merchandise.

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 bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is now 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, you should contact the local CPB 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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