HQ 084110: Classification of women's garments

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 084110

                          July 31, 1989

CLA-2 CO:R:C:G  084110  HP

CATEGORY:  Classification

TARIFF NO.:  6109.10.0037

Mr. Jerry Braff
Ardent Intimates, Ltd.
2950 Park Newport
Newport Beach, CA 92660

RE:  Classification of women's garments

Dear Mr. Braff:

     This is in reply to your letter of March 30, 1989,
requesting reconsideration of NYRL 835887 of February 10, 1989,
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).

FACTS:

     The merchandise at issue consists of two 100 percent cotton
knit garments.  The first is a women's camisole-type top with a
French neck and narrow shoulder straps.  The second garment is a
women's sleeveless spencer top with two inch shoulder straps.
Both styles extend from the neck and shoulders to below the
waist.  In addition, both have lightweight, sheer fabric which
stretches when worn, scattered pointill openwork, and bottoms
which have no extra stitching or capping.

     In NYRL 835887, we held these garments to be underwear,
under subheading 6109.10.0037, HTSUSA.  You claim that proper
classification should lie in heading 6114, as other knit tops.

ISSUE:

     Whether the merchandise at issue is considered underwear or
outer wear under HTSUSA?

LAW AND ANALYSIS:

     Subheading 6114.20.0010, HTSUSA, provides for women's or
girls' tops, of cotton.  The Guidelines for the Reporting of
Imported Products in Various Textile and Apparel Categories, CIE
13/88, Nov. 23, 1988, at 11 (hereinafter "Textile Guidelines")
state that:

          [g]arments included in this category [(knit shirts and
          blouses, women's and girls', where you claim the
          instant merchandise belongs)] are of the type which are
          normally worn against the body or over underwear for
          appearance in public.

                              * * *

     Subheading 6109.10.0037, HTSUSA, provides for women's or
girls' knit underwear.  The General Rules of Interpretation
(GRI's) to the HTSUSA govern the classification of goods in the
tariff schedule.  GRI 1 states, in pertinent part:

          ... classification shall be determined according to the
          terms of the headings and any relative section or
          chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to
be classified in accordance with subsequent GRI's, taken in
order.

     Subheading 6109.10.0037, HTSUSA, is a use provision.  Conse-
quently, the heading under which the subject merchandise will be
classified will be controlled by the use in the United States at,
or immediately prior to, the date of importation of goods of the
class or kind to which the subject merchandise belongs.  The
controlling use is the principal use -- the use which exceeds any
other use.  Additional U.S. Rule of Interpretation 1(a), HTSUSA.
The actual use of certain shipments of merchandise will not
dictate a classification controlled by principal use.

     The Textile Guidelines, supra, at 25, provide:

          Category designation:  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 under-
          wear, it is generally agreed that sleeveless tops with
          lace inserts or lace edgings [sic.] are predominately
          worn as underwear.

                              * * *

     It is our opinion that, based upon the construction and
appearance of the two subject garments (i.e., the sheerness of
the fabric and the scattered openwork), these garments will
predominately be worn as underwear.  Although you state that the
merchandise is marketed and worn both as underwear and outer
wear, U.S. Additional Rule of Interpretation 1(a), supra, ordains
classification based upon the principal use; in this case, as
underwear.

HOLDING:

     As a result of the foregoing, the instant merchandise is
classified under subheading 6109.10.0037, HTSUSA, textile catego-
ry 352, as t-shirts, singlets, tank tops and similar garments,
knitted or crocheted, of cotton, women's or girls', underwear.
The applicable rate of duty is 21 percent ad valorem.

     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 importing the merchandise to determine
the current applicability of any import restraints or
requirements.

     Pursuant to section 177.9, Customs Regulations (19 C.F.R.
177.9), the ruling letter of February 10, 1989 is affirmed in
conformity with the foregoing.


                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division