CLA-2 CO:R:C:G 085431 CMR
Richard Wortman, Esq.
Alan Klestadt, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York, 10017
RE: Classification of women's upper body garments -- modification of
NYRL 839337, NYRL 839223, NYRL 842098, and NYRL 839336
Dear Mr. Wortman:
This ruling is in response to your submission of August 23,
1989, on behalf of North American Underwear Company (NAU), requesting
reconsideration of NYRLs 839337, 839223, 842098 and 839336 which
dealt with the classification of various styles of women's upper body
garments.
FACTS:
The garments at issue are styles J5402, J5409, J5401, and J5116
and J5403, which were classified in NYRLs 839337, 839336, 842098, and
839223, respectively, as women's knit tops under heading
6114.20.0010, HTSUSA, if of cotton, and heading 6114.30.1020, HTSUSA,
if of man-made fibers. These garments are finely knit women's crop
tops manufactured in Hong Kong and Columbia in both 100 percent
cotton and rayon/cotton blends. The tops are color coordinated to
match the importer's line of women's underpants and are designed in
tank-top, T-shirt, mock-turtleneck and bra-top styles which do reach
below the midriff. Although the tops and panties are sold
separately, they are marketed together at both the wholesale and
retail levels as coordinating garments.
Sample garments have been submitted for examination, as well as
advertising material at the wholesale and retail levels. It is
stated in the submission that NAU is the exclusive licensee of Gitano
brand women's underwear and sleepwear and that NAU has entered into a
restrictive licensing agreement with The Gitano Group which prohibits
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NAU from selling merchandise with would compete with other Gitano
products sold in sportswear/outerwear departments. The Gitano tops
at issue are sold exclusively in sleepwear/lingerie departments.
Affidavits attesting to the above information have been submitted to
Customs from the President of NAU and the Executive Vice-President
and Director of Product and Merchandising Development for NAU.
ISSUE:
Are the upper body garments at issue more properly classified as
underwear similar to T-shirts, singlets and tank tops of heading
6109, HTSUSA, or as tops under heading 6114, HTSUSA, which provides
for other garments?
LAW AND ANALYSIS:
Classification of products under the HTSUSA 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, and provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order].
Customs has previously ruled that classification of merchandise
cannot be governed on the basis of which department within a store
the merchandise is sold. However, it can be taken into consideration
along with any other evidence which supports the importer's position.
In this particular instance, the importer has adequately documented
his claim that the tops at issue are underwear and that they are
advertised and marketed at both the wholesale and retail levels as
underwear. The sworn affidavits indicate the tops are "sold
exclusively as underwear to underwear/lingerie departments" and are
intended to be sold as underwear that complement NAU's panties.
Since the garments are designed, manufactured, and marketed for use
as underwear and it has been recognized "that most consumers tend to
purchase and use a garment in the manner in which it is marketed,"
Mast Industries v. United States, 9 CIT 549, 551 (1985), aff'd, 786
F. 2d 1144 (1986), we believe these tops are more properly classified
as underwear similar to T-shirts, singlets and tank tops of heading
6109, HTSUSA.
Additionally, Customs has already ruled on a garment similar to
those at issue here in HRL 084865 of September 22, 1989. In that
ruling, the garment, a women's crop top, was classified as women's
underwear in subheading 6109.10.0037, HTSUSA.
HOLDING:
Styles J5402, J5409, and J5116 are classifiable as women's
underwear in subheading 6109.10.0037, HTSUSA, which provides for
T-shirts, singlets, tank tops and similar garments, knitted or
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crocheted, of cotton, women's or girls', underwear. The textile
category is 352 and the rate of duty is 21 percent ad valorem.
Styles J5401 and J5403 are classifiable as women's underwear in
subheading 6109.90.1080, HTSUSA, which provides for T-shirts,
singlets, tank tops and similar garments, knitted or crocheted, of
man-made fibers, women's or girls', other. The textile category is
639 and the rate of duty is 34 percent ad valorem.
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 Status Report On Current Import Quotas (Restraint
Levels), an internal issuance of the U.S. Customs Service, which is
updated weekly and is available for inspection at your local Customs
office.
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 your local Customs office
prior to importation of this merchandise to determine the current
status of any import restraints or requirements.
Pursuant to section 177.9 Customs Regulations (19 CFR section
177.9), NYRL 839337 of May 2, 1989, NYRL 839223 of April 11, 1989,
NYRL 842098 of June 12, 1989, and NYRL 839336 of May 3, 1989 are
modified in conformity with the foregoing.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
1cc: CITA
1cc: Legal Reference Section
1cc: Phil Robins