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HQ 087673


December 10, 1990

CLA-2 CO:R:C:G 087673 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.90.1065, 6109.10.0060

Mr. Steven Kott
K-Mart Apparel Corporation
7373 West Side Avenue
North Bergen, New Jersey 07047

RE: Reconsideration of DD 853631 of July 2, 1990; classification of two women's garments; pullovers vs. tank tops

Dear Mr. Kott:

This ruling is in response to your submission of August 3, 1990, requesting reconsideration of DD 853531 of July 2, 1990. That ruling involved the classification of two women's knit pullover garments. In DD 853531, the garments were classified in subheading 6110.30.3055, HTSUSA, as women's pullovers of man-made fibers, other.

FACTS:

The two garments at issue, styles 342 and 301, are women's fine knit pullover garments. The sample garments are made of 65 percent polyester/35 percent cotton fabric. However, your letter of August 3, 1990, indicates the garments will be made of chief weight cotton fabric.

Both styles are sleeveless and feature two-inch shoulder straps, large armholes, a round neckline, a single left breast pocket, hemmed bottom. Style 324 has a fully elasticized waist and style 301 has a drawstring waist.

ISSUE:

Are the subject garments classifiable as tank tops in heading 6109, HTSUSA, or as pullovers in 6110, HTSUSA?

LAW AND ANALYSIS:

Classification of goods 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, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

The Harmonized System offers little help in determining if these garments are classifiable as tank tops or pullovers. Therefore, we turn to the Textile Category Guidelines, C.I.E. 13/88, for guidance. In describing tank tops, the Guidelines state, in pertinent part:
tank tops are 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 garments before us appear to fit the above description. The issue becomes one of whether the drawstring, in the case and style 301, and the elastic, in the case of style 324, should be considered belt treatments and the garments excluded on that basis from classification as tank tops.

While styles 301 and 324 differ from the typical tank top, after examining the garments, we have difficulty regarding the drawstring or elastic in the subject garments as belt treatments. We believe that the overall impression and styling of the garments prompts recognition of them as tank tops. Therefore, we find no basis for not classifying the garments as tank tops.

HOLDING:

The garments at issue, styles 301 and 324, are classifiable as tank tops in subheading 6109.90.1065, HTSUSA, textile category 639, dutiable at 34 percent ad valorem. If made of fabric in chief weight of cotton, the garments would be classified in subheading 6109.10.0060, HTSUSA, textile category 339, dutiable at 21 percent ad valorem.

DD 853631 of July 2, 1990 is hereby modified to concur with the above classification in accordance with 19 CFR 177.9(d). This modification is not to be applied retroactively to DD 853631 and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, DD 853631 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of this new ruling as may be dictated by the circumstances.

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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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