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HQ 951763


July 30, 1992

CLA-2 CO:R:C:T 951763 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6109.10.0060

Gail Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-seven Broad Street
New York, New York 10004

RE: Reconsideration of Pre-entry Classification Ruling, PC 868360 of 11/26/91; Classification of a women's upper body garment; tank top v. similar to a tank top; 6109.10.0065, HTSUSA, v. 6109.10.0070, HTSUSA

Dear Ms. Cumins:

This ruling is in response to your request of April 16, 1992, on behalf of your client, Leonard A. Feinberg, Inc., for reconsideration of a Customs pre-entry classification ruling, PC 868360 of November 26, 1991. Specifically, you have requested reconsideration of the classification decision in PC 868360 regarding style 9106, a women's knit, cotton/spandex, upper body garment. The garment will be imported from Hong Kong.

FACTS:

A sample garment, style 9106, was received with your request of April 16, 1992. The garment is a sleeveless pullover style upper body garment made of finely knit 95 percent cotton/5 percent spandex fabric. It has a V-neck front and back, shoulder straps which measure less than two inches in width at the top of the shoulder, oversized armholes and a hemmed bottom. The garment extends from the shoulders to below the waist.

ISSUE:

Is the submitted garment, style 9106, classifiable as a women's tank top of subheading 6109.10.0060, HTSUSA, requiring a visa for category 339, or is it a women's garment which is similar to a tank top and thus classifiable in subheading 6109.10.0070, HTSUSA, requiring a visa for category 339-S?

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

The HTSUSA and the Explanatory Notes, which are the official interpretation of the HTS at the international level, offer no assistance in distinguishing a tank top from a garment similar to a tank top. Therefore, it is reasonable to look to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, for guidance regarding characteristics normally associated with garments commercially known as tank tops.

The Guidelines were developed and revised in accordance with the HTSUSA to insure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles. They offer guidance to the trade community and Customs personnel as to various characteristics of garments and may be used as an aid in determining the commercial designation of articles. It is important, however, to remember that the Guidelines are not hard and fast rules, but guidance in drawing distinctions between classes of garments.

In the Guidelines at page 13, tank tops are described as:

...sleeveless [garments] 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).

Having examined style 9106, this office agrees with you and your client that the garment falls within the description of a tank top as set out in the Textile Guidelines. We believe style 9106 is properly classified as a tank top and that PC 868360 was is error classifying the garment as similar to a tank top.

HOLDING:

Style 9106 is classifiable as a women's cotton knit tank top in subheading 6109.10.0060, HTSUSA, textile category 339, dutiable at 21 percent ad valorem.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying PC 868360, effective with the date of this letter. If after your review of this ruling letter, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of the date of this letter.

This notice to you should be considered a modification of PC 868360 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to PC 868360 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, this modification of PC 868360 will be in effect. We recognize that pending transactions may be adversely affected by this modification in that current contracts for importation arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and may apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

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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