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HQ 962021

September 19, 2001

CLA-2 RR:CR:TE 962021 SS


TARIFF NOS.: 6109.10.0037

Gail Cumins, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, NY 10004

RE: Request for Reconsideration of New York Ruling Letters B88682 and C82136; Reconsideration of New York Ruling Letter B86925; Women’s Knitted Cotton Tank-Styled Garments; Subheading 6109.10.0037, HTSUSA; Subheading 6109.10.0060, HTSUSA; Camisole-styled Tank Tops Not Readily Identifiable Upon Physical Examination as Outerwear or Underwear Determined to be Underwear based on Design, Marketing and Advertising Information

Dear Ms. Cumins:

This is in response to your letter dated July 6, 1998, on behalf of your client, Ariela-Alpha International LLC (“Ariela-Alpha”) and its sister companies, requesting reconsideration of New York Ruling Letter (NY) B88682, dated September 4, 1997, and NY C82136, dated December 18, 1997, which classified three styles of women’s cotton knit tank-styled garments as tank tops under subheading 6109.00.0060 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your client had previously received NY B86925, dated July 11, 1997, which classified two of the styles as underwear under subheading 6109.00.0037, HTSUSA. Physical samples of the three garments were provided with the request for reconsideration.

A meeting at Customs Headquarters was held with counsel and a representative of the importer on March 9, 2000. Additional submissions, dated April 17, 2000, and June 19, 2000, were submitted. Additional samples were received in connection with the June 19, 2000, submission.

A Notice of Proposed Modification was published in the Customs Bulletin, Vol. 35, No. 11 (March 14, 2001), proposing to modify NY B86925 to reflect the proper classification of the instant garments as tank tops under subheading 6109.00.0060, HTSUSA. Nine comments were received in response to the notice. All the comments objected to the proposed modification.

This letter is to inform you that after review of the rulings and comments received in response to the Notice of Proposed Modification, it has been determined that NY B86925, which classified the garments as underwear, is correct to the extent that the submissions have established that the garments at issue are designed, marketed and sold as underwear. However, NY B88682 and NY C82136 are also correct to the extent that no evidence was submitted at the time the rulings were issued to establish that the garments’ were designed, marketed and sold as underwear. Customs rationale is explained below.


The three tank-styled (or camisole-styled) garments which are the subject of this request are identified by the importer as Style 003621, Style 003670 and Style 003671.

Style 003621 is a white tank-styled top constructed of 95 percent cotton and 5 percent spandex jersey knit fabric. The garment features elasticized satin trim on the U-shaped front and rear necklines and elasticized adjustable shoulder straps. The shoulder straps are approximately ¼ inch wide. The bottom of the garment is hemmed.

Style 003670 is a tank-styled top constructed of 100 percent cotton knit fabric. The white garment features a brightly printed horizontal rainbow across the bust area, elasticized satin trim on the U-shaped front and rear necklines and elasticized adjustable shoulder straps. The shoulder straps are approximately ¼ inch wide. The bottom of the garment is hemmed.

Style 003671 is a tank-styled top constructed of 95 percent cotton and 5 percent spandex jersey knit fabric. The pink striped garment features elasticized satin trim on the U-shaped front and rear necklines that extend to form shoulder straps. The shoulder straps are approximately ¼ inch wide. The bottom of the garment is hemmed.

The importer asserts that all three tank-styled tank tops should be classified as underwear under subheading 6109.10.0037, HTSUSA. The importer submits that the physical characteristics of the garments, the environment of sale, advertising and marketing material, recognition in the trade of virtually identical merchandise and documents incidental to purchase and sale support the contention that the garments are underwear.


Whether the three tank-styled garments are classifiable as underwear under subheading 6109.10.0037, HTSUSA, or as tank tops under subheading 6109.10.0060, HTSUSA?


Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, and any related subheading notes and, mutatis mutandis, to the GRIs.

This matter is governed primarily by GRI 6, in that the choice in classification is between two subheadings. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings.

There is no disagreement as to the classification of the subject merchandise at the 8-digit level. Subheading 6109.10.00, HTSUSA, provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: of cotton.” The sole issue in this case is whether the merchandise is classified under subheading 6109.10.0037, HTSUSA, or 6109.10.0060, HTSUSA. Subheading 6109.10.0037, HTSUSA, provides for women’s underwear. Subheading 6109.10.0060 provides for women’s non-underwear tank tops. Thus, the crux of the question in this case is whether the garments are underwear or outerwear.

Neither the chapter notes nor the EN shed light on the difference between underwear and outerwear tank tops. Furthermore, as the terms “tank top” and “underwear” are not defined in the legal notes to the HTSUSA nor in the corresponding ENs, we look to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988) (“Guidelines”) for assistance.

The Guidelines reference to the term “tank top” describes a garment which is:

... sleeveless with oversized armholes, with or without a significant drop below the arm. The front and the 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 drawstring 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).

The Guidelines define “underwear” as follows:

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.

The instant garments meet the definition of tank tops. However, some tank tops are outerwear and some tank tops are underwear. Customs originally stated that the subject garments were fashionable camisole-styled tank tops currently popular among teens and young women as outerwear. However, based on the responses to the Proposed Notice of Modification, it is now Customs belief that the instant garments are not clearly outerwear.

In past rulings, Customs has pointed out that the merchandise itself may be strong evidence of use. Citing Mast Industries v. United States, 9 CIT 549, 552 (1985), aff’d 76 F. 2d 1144 (1986), citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963). The importer suggests that the appearance and construction features of the garments at issue, including the “underwear weight” fabric, elasticized trim, narrow “lingerie-type” straps and snug-fit construction are characteristic of underwear. Customs does not agree that such features are limited to use in underwear. The weight and opaqueness of the fabric is appropriate for both underwear and outerwear. The narrow adjustable straps have become a popular feature on outerwear camisole-styled tank tops. Current fashion has also embraced snug-fitting garments as outerwear. Based on physical examination of the garments, the tank tops are not readily identifiable as either underwear or outerwear. The garments are ambiguous.

When presented with a garment which is ambiguous and not clearly recognizable as underwear or outerwear, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. See HQ 960866, July 15, 1999; HQ 960865, dated July 15, 1999; HQ 963442, July 7, 1999; HQ 960864, July 2, 1999; HQ 960862, dated July 2, 1999; HQ 961978, dated June 17, 1999; HQ 961185, dated June 11, 1999; HQ 960906, June 3, 1999; HQ 960926, February 25, 1999; HQ 960925, February 23, 1999; HQ 960928, February 15, 1999; HQ 961116, November 20, 1998; HQ 960690, September 25, 1998; HQ 959843, May 6, 1998; HQ 961036, April 27, 1998; HQ 960797, February 19, 1998; HQ 960442, August 4, 1997; HQ 960391, April 22, 1997; HQ 957762, April 28, 1995; HQ 957615, May 24, 1995; HQ 957004, November 23, 1994; HQ 956351, July 7, 1994. and HQ 956350, July 5, 1994.

Ariela-Alpha and its sister companies are engaged in the production and sale of fine lingerie. The importer submitted a copy of Alpha-Syrlay’s catalogue which indicates that Alpha-Syrlay exclusively sells intimate apparel including similar camisole-styled tank tops with matching panties. The subject garments were designed by the Director of Designing at Ariela-Alpha, who has been designing lingerie for over thirteen years, as undershirt and panty sets. Performance standards showed that the instant garments were designed to meet the washing standards for underwear which are more rigorous than the standards for outerwear. Although Ariela-Alpha failed to provide specifications establishing a difference between underwear tank tops and outerwear tank tops, in comparing the subject garments to the outerwear camisole-styled tank tops submitted by the importer, the subject garments do appear to be made of a lighter weight fabric and are cut smaller.

Each of the garments at issue is sold as a “cami and panty set” and thus have a matching panty. Statements from underwear buyers for Sears, K-mart, Boscov’s and Value City Department stores indicate that the garments were purchased for sale in the intimate apparel department as “cami and panty sets.” Copies of commitment sheets from these retailers substantiate that the garments were exclusively purchased as underwear. It is also clear that the garments are sold by the retailers as underwear. Photographs from showroom floors support the claim that the tank tops are merchandised and displayed as underwear and sold in the lingerie department along side other underwear garments as underwear. The importer has also established that the intimate apparel industry perceives the subject tank tops as underwear by submitting statements from buyers stating that the garments are known in the trade as underwear.

The importer has submitted several advertisements showing the garments advertised as underwear. The advertisements depict the “cami and panty sets” among other lingerie articles. Customs notes that the hang tags show the subject garments worn with the matching panties. The importer has also provided numerous print-outs from various websites showing similar lightweight, slim-fitting camisole-styled tank tops advertised as intimate apparel.

Although the manner in which an article is designed, manufactured, and marketed is not dispositive of tariff classification, Customs finds it to be persuasive in this case when determining the classification of ambiguous tank tops. See Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 1986); St. Eve International, Inc. v. United States, 11 Ct. Int’l Trade 224 (1987); and Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995).

Customs emphasizes that upon physical examination the instant tank tops were not readily identifiable as outerwear or underwear. Accordingly, this ruling does not affect the classification of the majority of tank tops which upon physical examination are clearly outerwear or underwear.

Several of the comments raised the concern that the proposed modification would have resulted in all knit cotton tank tops being classified as outerwear. There was fear of a massive quota migration from textile category 352 to textile category 339. However, this would not have been the result because the proposed revocation, like the current ruling, only covered a small number of garments. Similarly, now that the subject tank tops are classified as underwear, there should not be a concern of a quota migration from textile category 339 to textile category 352. As with any ambiguous garment, Customs recommends that importers submitting ruling requests involving tank tops which are not readily recognizable as underwear or outerwear should submit a full and complete statement of the facts, including but not limited to design, marketing and sales information. Customs realizes that this may result in the same merchandise being classified differently when imported by different companies. Despite Customs belief that each article has only one appropriate classification under the HTSUSA, it appears that in the case of ambiguous underwear/outerwear tank tops, the courts direct consideration of the manner in which the garments are designed, marketed, sold and recognized in the trade. If an importer can establish that an ambiguous tank top is designed, marketed and sold as underwear, the garment will be classifiable as underwear.

Under section 484 of the Tariff Act of 1930, as amended, (19 U.S.C. 1484) the importer of record is responsible for using reasonable care to enter, classify and value importer merchandise, and provide any other information necessary to enable Customs to properly assess duties, collect accurate statistics and determine whether any other applicable legal requirement is met. When dealing with ambiguous garments, importers have the responsibility of advising Customs of the manner in which a garment is designed, marketed and sold, in order to ensure the proper classification of merchandise. Providing such information is the importers’ part of the reasonable care and shared responsibility equation.

Customs cautions all importers that if information is received that garments are entered by means of false statements or merchandised in a manner not consonant with the entered classification, action under 19 U.S.C. § 1592 may be appropriate. Representations by importers of the manner in which garments are designed, marketed and sold are subject to periodic verification by Customs. If it is found that garments are not designed, marketed and sold in accordance with the representations or that the importer has engaged in artifice or disguise to avoid a duty rate or textile category code, a penalty may ensue.


NY B88682 and NY C82136 are hereby affirmed. NY B86925, is also affirmed in light of the instant ruling which is based on additional information submitted by counsel.

The subject merchandise is classifiable under subheading 6109.10.0037, HTSUSA, textile category 352, which provides for women’s underwear. The applicable general column one rate of duty is 17.8 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, 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 that 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 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 applicable to textile merchandise, your client should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


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