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