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HQ 089777


January 13, 1992

CLA-2 CO:R:C:T 089777 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3070

Mr. Bruce Schiller
Joseph & Schiller Inc.
8725 N.W. 18th Terrace
Suite 301
Miami, Florida 33172

RE: Modification of DD 857827 (11/30/90); classification of a women's 100% polyester knit smock; 6114.30.3070, HTSUSA; HRL 083583 (5/19/89)

Dear Mr. Schiller:

This is in response to your request of June 5, 1991, for reconsideration of District Ruling 857827, dated November 30, 1990, on behalf of K-Mart Apparel Corp. A sample of the subject merchandise was submitted for Customs' examination.

FACTS:

Three garments were the subject of District Ruling 857827. Reconsideration is only requested for style 0940.

Style 0940 is a women's knit garment featuring a full front opening with button closures and two patch pockets below the waist. The garment is manufactured from 100% polyester fabric and will be imported from the Dominican Republic.

District Ruling 857827 classified style 0940 under subheading 6114.30.1020 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In your submission you assert that classification is proper under subheading 6114.30.3070, HTSUSA. The difference between the two classifications is whether the garment, classified in the "basket" provision for knit garments, would be considered a top or a smock under the "other" breakout.

You have submitted advertising and marketing information, provided by K-Mart, which states that the buyer for smocks and uniforms has certified that this garment was purchased as a smock and is intended to be worn over other outer garments, such as blouses, for protection. The submitted advertisement refers to the subject merchandise as a "smock" and depicts a women wearing the article over another item of outer apparel. The copy reads, "[B]utton-up or snap-up over-garments to protect your clothing while on the job or at home ... " The subject merchandise will be sold with other smocks and uniforms and will neither be advertised nor displayed as a blouse.

ISSUE:

Whether the article at issue is classifiable under heading 6114, HTSUSA, as a top or as a smock within that heading's "other" provision?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

In Headquarters Ruling Letter (HRL) 083583, dated May 19, 1989, Customs classified an article that was nearly identical to the subject merchandise. In that ruling it was determined that a women's loose-fitting, 100% polyester knit garment with a five button full front opening and short, cuffed sleeves was classifiable under subheading 6114.30.3070, HTSUSA. The rationale in that ruling was that although the garment was commonly known and worn as a shirt, classification as such was precluded because of the pockets below the waist. Generally, garments excluded from classification in heading 6106, HTSUSA, due to the presence of pockets below the waist are classified in heading 6110, HTSUSA, which provides for sweaters, pullovers, sweatshirts, waistcoats and similar articles, knitted or crocheted. Upon examination, it was apparent that the garment at issue in HRL 083583 was not similar to the named articles in heading 6110, HTSUSA, and that classification was more appropriate under heading 6114, HTSUSA.

Heading 6114, HTSUSA, covers other knit garments not more specifically provided for elsewhere in the tariff schedule. The article at issue in the instant case is a knit garment that is neither a shirt nor a garment similar to those in heading 6110, HTSUSA. Classification is therefore proper under heading 6114, HTSUSA, and the question arises as to whether this garment is a top or a smock under the "other" breakout in this heading.

It is Customs' opinion that the submitted article is a smock as opposed to a top. There is nothing in The Textile Category Guidelines, CIE 13/88, to indicate that articles intended to be worn over other outer apparel, and designed to protect such garments, are included within the definition of "tops". The submitted article exhibits characteristics more often associated with smocks: the garment is cut generously thereby allowing an individual to easily accommodate outerwear apparel underneath it; the garment is of an easily washable fabric; the garment contains no lining or detail work which would lead to the presumption that this article is to be worn alone as a top; and the importer has submitted material which states that this article is ordered, advertised and displayed only as a smock. There is no additional evidence which would lead us to a contrary assumption about this garment's status. Accordingly, this garment is properly classifiable as a smock.

HOLDING:

Style 0940 is classifiable under subheading 6114.30.3070, HTSUSA, which provides for other garments, knitted or crocheted: of man-made fibers: other ... other: women's or girls'. The applicable rate of duty is 16.1% ad valorem and the textile category is 659.

In order to ensure uniformity in Customs' classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), DD 857827 is modified to reflect the above classification effective with the date of this letter. If, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you may have with respect to this matter. Any submission you wish to make should be received within 30 days of the date of this letter.

This modification is not retroactive. However, DD 857827 will not be valid for importations of the subject merchandise arriving in the United States after the date of this notice. We recognize that pending transactions may be adversely affected (i.e., merchandise previously ordered and arriving in the United

States subsequent to this modification will be classified accordingly). If it can be shown that you relied on DD 857827 to your detriment, you may apply to this office for relief. However, you should be aware that in some instances involving import restraints, such relief may require separate approvals from other agencies.

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 updated weekly and is available 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, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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