HQ 950364
January 17. 1992
CLA-2 CO:R:C:T 950364 PR
Mr. Tommy Lai
Hong Kong Economic and Trade Office
British Embassy
1233 20th Street, N.W., Suite 504
Washington, D.C. 20036
RE: Classification of a Woman's Tank Top Style Garment--
Outerwear vs. Underwear
Dear Mr. Lai:
This is in reply to your letter of September 16, 1991,
concerning certain garments imported at the port of Chicago by
Merchandise Ventures International Incorporated. Our ruling on
the matter follows.
FACTS:
The submitted sample is a sleeveless pullover with shoulder
straps approximately 1«-inches wide at their narrowest point. It
is made from a fine knit cotton fabric and has a U-shaped
neckline with a burnt-out lace insert at the lowest portion of
the U. The garment extends below the waist and has a hemmed
bottom. The armholes and neckline are finished with a knit
fabric capping, the visible portion of which is 3/8-inch. The
capping is secured with white yarn using a two-needle top stitch. The merchandise is stated to be imported with matching
briefs as underwear sets. While not stated, we understand that
the merchandise is imported in white and in various colors.
ISSUE:
The issue presented is whether the subject merchandise is
classifiable as underwear or as outerwear.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. The competing provisions are
subheading 6109.10.0037, Harmonized Tariff Schedule of the United
States Annotated (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 nonunderwear
knit cotton tank tops. Accordingly, since the classification of
the merchandise is dependent on whether it is underwear, GRI 1
governs the classification of the subject merchandise.
This office has received at least three classification
requests on this same merchandise and, in each instance, the
importer contends that the subject garments are underwear and
classifiable in subheading 6109.10.0037. Accordingly, we will
address all the points raised in the submissions before us.
Those points are:
1. The garment cannot be worn with decency because of the
lightweight fabric.
2. The armholes are oversized and the side panels of any bra worn underneath these garments would present an
unsightly appearance.
3. The stitching holding the capping in place presents and
unfinished appearance.
4. The lace inserts cause the garments to comport with the
criteria for underwear contained in the Guidelines for
the Reporting of Imported Products in Various Textile
and Apparel Categories, 53 F.R. 52563, December 28,
1988, hereafter referred to as "the Guidelines".
5. The garments are advertised as underwear and sold only
in underwear and lingerie departments.
In regard to the first two contentions, this office first
attempted to determine the validity of those positions by viewing
the garments on a mannequin, but the results were indefinite.
Accordingly, the garments were modeled by a real person. The
white sample, without an undergarment, were more revealing than
most women would wear. A purple sample, however, proved to be
sufficiently opaque to allow it to be worn without an
undergarment. A properly sized (for the model) white garment was
put on over a bra having extra wide side panels. The armholes
appeared to be normal size and the side panels of the bra were
not visible. The white garment, when worn with a bra, and the purple garment, with or without a bra, presented a modest
outerwear tank top appearance. In addition, the white sample may
be worn, with or without an undergarment, with a partially or
fully unbuttoned shirt or sweater.
The stitching on the capping, while appearing unsightly or
unfinished to some women, is considered by others to present a
desirable appearance. It is a styling feature and appears on a
number of outerwear garments.
The Foreword to the Guidelines states:
These guidelines do not purport to take into account
every possible fabric, construction, and styling
combination, since, in wearing apparel especially, each
season brings new styles. * * * Certain types of
garments are so closely related in use, though, that
the corresponding category designations seem to
overlap. In such situations it should be remembered
that the guidelines are to be used as an aid in
determining the commercial designation and, hence, the
classification of an article. (at page 52563)
Accordingly, it should be remembered that the Guidelines are
just that, guides to be utilized in determining the commercial
designation of articles. They are not immutable rules and should
not be blindly followed.
Bearing this in mind, the Guidelines contain the following
statements with regard to underwear.
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 predominantly worn as
underwear. * * *
Thus, the Guidelines' requirement for a garment to be
underwear is whether a garment is ordinarily worn under other
garments and not exposed to view. The paragraph concerning
sleeveless tops with lace inserts is subordinate to that
requirement and expresses a conclusion, not forcefully or
definitively worded, that is intended to assist in the
classification of borderline garments. As such, its
applicability must be weighed on a case-by-case basis, evaluating
each sample individually.
In this instance, Customs has been presented with
underwear/loungewear catalogs, each containing a representation
of garment similar to the subject merchandise. None of them
specifically identify those garments as underwear. On the other
hand, our National Import Specialist for this area has submitted
an advertisement of a similar garment being worn as outerwear
apparel. Also, the Office of Textiles and Apparel, Department of
Commerce, has submitted an advertisement showing a similar
garment also being worn as outerwear.
In addition, we have informally surveyed several female
employees within our own office and found a relatively even split
in opinion concerning whether the purple and white samples were
outerwear or underwear.
HOLDING:
Based on the above, we conclude that there is not sufficient
evidence for this office to reverse the classification of the
responsible Customs import specialist, which was made with the
concurrence of the National Import Specialist, of the subject
merchandise in the subheading for women's tank tops,
6109.10.0060, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division