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HQ 962161




Dec. 29, 1998
CLA-2 RR:CR:TE 962161 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.10.0040

Ms. Fiona Chau
Hong Kong Economic and Trade Office
1520 18th Street, N.W.
Washington, D.C. 20036

RE: Request for reconsideration of classification; women's cashmere knit top

Dear Ms. Chau:

This is in response to your letter, dated August 25, 1998, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a woman's cashmere knit top. A sample was submitted to this office for examination and will be returned under separate cover.

FACTS:

The submitted sample, referenced style number 17804, consists of a woman's plain jersey finely knit top constructed of 100 percent cashmere. The garment is sleeveless and features shoulder straps measuring less than two inches in width, a rib knit waistband and a square front neckline. The upper back of the top of the garment is cut straight across, from side seam to side seam.

In Preclassification Ruling (PC) C85659, dated April 17, 1998, Customs classified the garment in heading 6114, HTSUS, as a knit top. You disagree with this classification and claim that regardless of the construction of the garment "in accordance with the existing classification practice of both the US and Hong Kong, a knitted garment, if composed of 100 percent cashmere, should be classified as a wool sweater under category 445/446 irrespective of the stitch count."

ISSUE:

What is the proper classification for the subject garment?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

First, we would like to emphasize that classification of merchandise in the HTSUS is based on the terms of the headings and not on a comparison of statistical suffixes and textile quota categories. Accordingly, any comparison that is executed is between the competing headings, based on the terms of the headings and any applicable section or chapter notes.

There are three plausible classification provisions for this merchandise: heading 6109, heading 6110, and heading 6114, HTSUS. Heading 6109, HTSUS, provides for, among other things, tank tops. As the term "tank top" is neither defined in the legal notes to the HTSUS nor in the corresponding Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), we look to the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (1988) (herein Guidelines) for assistance. The Guidelines reference to the term "tank top" is indicative of 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).

This definition is consistent with the definition found in Charlotte Mankey Calasibetta's Essential Terms of Fashion (1986) at 221:

Similar to men's undershirt with U-neckline and deep armholes, shaped toward shoulder to form narrow straps; named for tank suit....

Before we can even arrive at the features which would preclude a garment from qualifying as a tank top, a garment must already possess certain basic features. It is clear from these definitions that the fundamental features of a "tank top" require a drop below the neckline front and back, as well as deep armholes in order to form narrow straps. These features are critical in creating the silhouette which is the distinguishing characteristic of the tank top.

The subject garment departs from the above stated definitions in that the construction of the back of the garment does not feature the requisite drop below the neckline to form one of the shapes (U, V, etc.) discussed in both the Guidelines and the Essential Terms of Fashion. The absence of this feature causes the shoulder coverage on these garments to differ from the required "straps". As the subject sample differs significantly from what is commonly referred to as a tank top, it is also not sufficiently similar to a tank top to qualify for classification in heading 6109, HTSUS.

Heading 6110, HTSUS, provides for, inter alia, sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted. The EN to heading 6110, HTSUS, state, "This heading covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles)." As "pullover" is not defined in the Guidelines, we look to other sources. Those sources define a pullover garment as:
a sweater with a round, crew, or V-neck, pulled over the head, as contrasted with a cardigan or coat sweater, which opens down the front. Also called pull-on or slip-on sweater. Charlotte Mankey Calasibetta, Essential Terms of Fashion at 211, (1986).
garment that pulls over the head. Usually, a blouse or sweater. Mary Brooks Picken,
The Fashion Dictionary at 291, (1973).

Customs has consistently held that in order for a garment to be classified in heading 6110, HTSUS, the garment must at a minimum feature adequate "coverage" of the upper part of the body. As the styling of the subject garment, that is, an upper back that is cut straight across from side seam to side seam, and lacking in adequate shoulder coverage, does not meet this requisite
"coverage", the subject garment is precluded from classification in heading 6110, HTSUS.

Heading 6114, HTSUS, provides for other garments, knitted or crocheted. The EN to that heading state that, "this heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter." Accordingly, the subject garment, which because of distinct styling features is precluded from classification in headings 6109 and 6110, HTSUS, is properly classified in heading 6114, HTSUS.

As your concerns address an inconsistency between the provisions of our tariff and the current Agreement between Hong Kong and the United States, we suggest that you address these concerns to Ms. Troy H. Cribb, the Chairman for the Committee for the Implementation of Textile Agreements.

HOLDING:

The decision in PC C85659 is confirmed.

The subject garment, referenced style 17804, is correctly classified as a knit top in subheading 6114.10.0040, HTSUSA, which provides for other garments, knitted or crocheted: of wool or fine animal hair: tops: women's or girls'. The applicable rate of duty is 15 percent ad valorem and the quota category is 438.

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 you check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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 the 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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