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HQ 963600

March 31, 2000

CLA-2 RR:CR:TE 963600 jb


TARIFF NO.: 6109.10.0065

Allison M. Baron, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy-five Broad Street
New York, NY 10004

RE: Request for reconsideration of NY E82416; classification of girls’ knit tops

Dear Ms. Baron:

This is in regard to your letter, dated July 9, 1999, on behalf of your client, Jolie Intimates, requesting reconsideration of New York Ruling Letter (NY) E82416, dated June 11, 1999, which classified certain girls’ knit garments in heading 6109, Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided to this office for examination and will be returned under separate cover.


The merchandise at issue consists of a girls’ tank top, referenced style 9501, constructed of 60 percent cotton/ 40 percent polyester knitted fabric. The garment features shoulder straps (formed from fabric capping which loop around from the shoulders to the underarm area) measuring approximately ½ inch wide, a slightly rounded neckline and back, and matching fabric capping at the neckline, back and bottom.

In NY E82416, the subject merchandise was classified along with a coordinating bikini panty. Although you do not dispute the classification of the bikini panty in heading 6108, HTSUS, as an underwear garment, you state that the classification of the subject tank top as an outerwear garment of heading 6109, HTSUS, is incorrect. In your opinion the subject tank top, similar to the coordinating panty, is correctly classified as an underwear garment.

We note that although you refer to the subject tank top as a “crop top”, the subject garment reaches the waist and thus, for classification purposes, the garment is not considered a crop styled garment.

In support of your claim that the subject merchandise is an underwear garment you state the following:

1. the design of the garments is such that use as outerwear is not appropriate; 2. the garment is designed, manufactured and sold as underwear; 3. Jolie Intimates is a corporation which sells only underwear garments.


What is the proper classification of the garments at issue?


Classification of merchandise 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 and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

Heading 6109, HTSUSA, provides for, “T-shirts, singlets, tank tops and similar garments, knitted or crocheted.” The determinative issue in the instant case is whether the subject upper body garment is deemed as of the class or kind of merchandise recognized as outerwear tank tops or underwear within this heading.

In determining to which class or kind of merchandise garments belong, the court in United States v. Carborundum Co., 63 C.C.P.A. 98, C.A.D. 1172, 536 F.2d 373, cert. denied, Carborundum Co. v. United States, 429 U.S. 979 (1976), set out the following factors:

1. general physical characteristics of the merchandise; 2. expectation of the ultimate purchaser; 3. channels, class or kind of trade in which the merchandise moves; 4. environment of the sale and manner in which the merchandise is advertised and displayed; 5. use, if any, in the same manner as merchandise which defines the class; 6. economic practicality of so using the merchandise; and, 7. recognition in the trade of this use.

In HQ 089790, dated June 23, 1991, Customs discussed the classification of children’s garments as sleepwear or underwear, and made reference to “principal use” as outlined in additional U.S. Rule of Interpretation 1(a). In that regard, it was stated that “Customs will usually look to how that merchandise is viewed in the commercial arena.” Thus, the classification determination was not solely based on whether the particular merchandise was used as underwear or sleepwear, but also involved the commercial reality of the class of merchandise.

In St. Eve International, Inc. v. United States, the court referred to United States v. Carborundum Co, to decide that the garments at issue were nightwear and not outerwear. Evidence was presented on both sides as to the “class or kind of merchandise” to which the garments belonged. However, in its concluding remarks, the court relied on the holding in United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963), when it stated that “the merchandise itself may be strong evidence of use” when making the final classification determination.

In the case of the subject merchandise, you state that “there are aspects of the design which make the garments inappropriate for use as outer clothing. First, only a single binding is used as the shoulder straps thereby preventing a constructed fit. If this garment is worn with no other article of clothing on top of it, it would not stay on securely during normal body movements. Second, the top sideseam is cut to fall about 6.5 inches below the shoulder. On an average girl, this would mean that the arm opening fell at or below chest level. Third, the fabric weight ranges from 140-160 grams, a weight that is, generally, considered too “skimpy” for cotton knits designed as outer clothing.” To further substantiate this claim you make reference to an informal case study wherein you asked parents of young girls if they would permit their children to wear the subject garment as outerwear, and their response was in the negative. Although we do not dispute your findings, it is our opinion that such an informal experiment, limited to only a small number of participants, is inconclusive. This office also conducted its own “informal case study” by reviewing a number of advertisements for similar garments. Our results showed that the armholes on many of the garments we found in the advertisements were cut much deeper than the subject garment, yet those advertised garments were being sold as outerwear. Additionally, as in the garment submitted, the garments advertised featured singly ply capping to finish the neckline and arm openings. This capping provides sufficient coverage for use as outerwear such that neither the chest nor back are exposed in any inappropriate manner. We also note that the fabric weight, which you indicate to range from 140-160 grams, and the opaqueness of this garment, are suitable for outerwear use.

In Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), the classification of garments as nightwear or shirts was discussed. Much evidence was presented supporting the argument that the merchandise was to be sold as nightwear. Though the court recognized that most consumers tend to purchase and use a garment in the manner in which it is described, the court also based its judgement on the overall appearance of the garment. In particular, the court acknowledged that in reaching a determination, the court relied on outside sources for guidance:

[T]ariff terms are construed in accordance with their common and commercial meaning* * * and it is presumed that Congress formed the tariff acts according to the general usage and documentation of the trade* * * [The] common meaning of a tariff term is a question of law to be determined by the court * * *. In answering the question of a term’s common meaning, courts may consult dictionaries, lexicons, scientific authorities, and other reliable services of aids.

The court relied on the various available lexicographic sources defining “shirt” and concluded that the overall use of the garments in Mast Industries did not support a finding that they qualified as shirts.

In the case of the submitted garment, we look to The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, (CIE 13/88), for guidance. The Guidelines cite the following characteristics as those associated with garments commercially known as tank tops:

...sleeveless [garments] with oversized armholes, with or without a significant drop below the arm. The front and back may have a round, V, U, scoop, boat, square or other shaped neck which must be below the nape of the neck. The body of the garment is supported by straps not over two inches in width reaching over the shoulder. The straps must be attached to the garment and not be easily detachable. Bottom hems may be straight or curved, side-vented, or of any other type normally found on a blouse or shirt, including blouson or draw-string waists or an elastic bottom. The following features would preclude a garment from consideration as a tank top:

1) pockets, real or simulated, other than breast pockets; 2) any belt treatment including simple loops; 3) any type of front or back neck opening (zipper, button or otherwise).

As such, the Guidelines (in addition to other sources referred to by Customs, i.e., Headquarter ruling letters, and trade advertisements) support the fact that this garment falls within the description of what is commonly referred to as a “tank top”.

The subject garments can easily be worn as outerwear garments, allowing for ample coverage for purposes of modesty. These garments are commonly and commercially recognized in the trade as outerwear and are advertised as such. Accordingly, based on a review of the general appearance of the garment, i.e., the fabric, fit, and coverage, outside sources defining tank tops, as well as advertisements of similarly styled articles, we believe that the subject garments were properly classified as outerwear tank tops in heading 6109, HTSUS.


The determination in NY E82416 is affirmed.

The subject girls’ tank tops are classified in subheading 6109.10.0065, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: of cotton: women’s or girls’: other: tank tops: girls’”. The applicable general column one rate of duty is 18.3 percent ad valorem and the textile quota category is 339.

The designated textile and apparel categories 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 your client 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 the local Customs office.

Due to the 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 Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director

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