HQ 085431: Classification of women's upper body garments -- modification of NYRL 839337, NYRL 839223, NYRL 842098, and NYRL 839336

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                    HQ 085431

                                December 20, 1989


      CLA-2 CO:R:C:G  085431  CMR

      CATEGORY: Classification

      TARIFF NO.: 6109.10.0037, 6109.90.1080

      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