CLA-2 RR:CR:TE 966807 KSH
Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
Seventy-five Broad Street
New York, NY 10004
RE: Modification of New York Ruling Letter (NY) J81984, dated April 3, 2003; Classification of certain knit camisoles
Dear Ms. Cumins:
This is in response to your letter of September 5, 2003, in which you request reconsideration of New York Ruling Letter (NY) J81984, issued to your client O’Bryan Brothers Inc., on April 3, 2003, concerning, in part, the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a tank-styled camisole constructed of fine rib knit 100% cotton fabric and a camisole with spaghetti shoulder straps constructed with a fine rib knit 100% cotton fabric. The articles were classified in subheading 6109.10.0060, HTSUSA, which provides for “tank tops… knitted or crocheted: Of cotton: women’s.” Through counsel, you have provided additional information that was not submitted at the time of the ruling request regarding how the garments are sold, used and known. Upon your request we have reviewed NY J81984 and, with respect to these two garments, found it to be in error. Therefore, this ruling modifies NY J81984 as it pertains to the classification of the aforementioned garments.
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 modification of NY J81984 was published on January 7, 2004, in Vol. 38, Number 2, of the CUSTOMS BULLETIN. CBP received no comments.
FACTS:
Two samples were submitted in conjunction with your request for reconsideration. The first sample is identified as Style 176040. It is a tank-styled camisole constructed with a fine rib knit 100% cotton fabric. The garment features elasticized capping on the rounded rear neckline, shoulder straps and armholes, a lace- like insert at the V-neck front, side seams, 1 ¾” shoulder straps and a hemmed bottom.
The second sample is identified as Style 176440. It is a camisole constructed with a fine rib knit 100% cotton fabric. The garment features elasticized spaghetti shoulder straps ¼” wide that extend to form the edging on the armholes, a lace-like trim at the V-neck front, side seams and a hemmed bottom.
You submit that the physical characteristics of the garments, the environment of sale and advertising and marketing material support the contention that the garments are underwear.
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 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 camisoles at issue as underwear: (1) your client is exclusively engaged in the marketing and distribution of underwear and sleepwear; (2) the camisoles are 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 garments are only offered and sold as underwear; (4) the camisoles are sold throughout the year; (5) advertisements for the camisoles appear alongside other underwear garments and; (6) some of the camisoles are sold with matching underwear.
Based upon the evidence presented and the factors set forth in St Eve, supra, the 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:
NY J81984, dated April 3, 2003, is hereby modified.
The camisoles are 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 16.5 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.
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