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HQ 967024




September 28, 2004

CLA-2: RR:CR:TE: 967024 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.20.0010

Area Director
Bureau of Customs and Border Protection
JFK International Airport Area c/o Liquidation and Protest Branch

Building 77 - JFK International Airport

Jamaica, NY 11430

RE: Decision on Application for Further Review of Protest No. 4701-04-100069; the tariff classification of certain women’s 100% cotton knit top

Dear Area Director:

This is a decision on the Application for Further Review (“AFR”) of Protest Number 4701-04-100069, timely filed by Blue Star Imports LP (“Blue Star” or “protestant”), concerning the classification of a certain women’s 100 percent cotton knit top known as “style number 8753.”

FACTS:

Style number 8753 has a modified square neckline in front, and no defined neckline in back. The subject garment has ribbon-type straps that extend from the shoulders to the upper-chest in the front and to below the shoulder blades in the back. The upper edge of the back extends approximately straight across from side seam to side seam, exposing the upper half of the wearer’s back. The garment has a plain hemmed bottom that extends slightly below the waist, is of 100 percent cotton knit fabric, and is made in Russia.

Two shipments of the subject garment were entered through JFK International Airport in April 2003. The protestant claimed classification under subheading 6114.20.0010, HTSUSA, which provides for: “Other garments, knitted or crocheted: Of cotton, Tops: Women’s or girls’.” The merchandise liquidated on November 14, 2003, under subheading 6109.10.0060, HTSUSA, which provides for: “T-shirts, singlets, tank tops, and similar garments, knitted or crocheted: Of cotton, Women’s or girls’: Other: Tank tops: Women’s.”

Further review of Protest Number 4701-04-100069 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed was alleged to be inconsistent with prior CBP rulings, which protestant attached to the Protest.

ISSUE:

Is the subject garment classified under heading 6109, HTSUSA, as a cotton tank top, or under heading 6114, HTSUSA?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

While the term is not defined in the HTSUSA or the EN, we describe “tank tops” classified in heading 6109, HTSUSA, as:
sleeveless garments with oversized armholes, with or without significant drops below the armhole openings. The front and the back may have a round, V, U, scoop, boat, square or other shaped neck. The top of the neckline is below the nape of the neck. The body is supported by straps not over two inches in width reaching over the shoulder. The straps are attached to the garment and are not easily detachable. The bottom hems may be straight, curved or side-vented. Garments classified as tank tops do not have pockets, except for breast pockets; belt treatments of any kind, including simple loops; or any type of front or back neck opening, including buttons, zippers, etc. They do not have a drawstring, rib knit waistband, or other means of tightening at the bottom. See “What Every Member of the Trade Community Should Know About: Apparel Terminology under the HTSUS,” January 2004.

While the subject garment has a shaped front neckline (i.e., a modified square neckline), it does not have a shaped neckline in the back. Instead, the article has no defined neckline in the back. The upper edge of the back extends approximately straight across from side seam to side seam, exposing the upper half of the wearer’s back. Therefore, the garment is not a “tank top” and cannot be classified as such in heading 6109, HTSUSA.

Heading 6114, HTSUSA, 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." We find that style number 8753 is not included more specifically in the preceding headings of Chapter 61. Accordingly, the subject garment, which because of distinct styling features is precluded from classification as a “tank top” in heading 6109, HTSUSA, is properly classified in heading 6114, HTSUSA. As the subject merchandise is of 100 percent cotton, it is classified accordingly.

Also see New York Ruling (NY) J88314, dated October 3, 2003, NY I81965, dated June 21, 2002, and NY J81364, dated March 18, 2003, in which we classified similar cotton tops in heading 6114, HTSUSA.

HOLDING:

Protest No. 4701-04-100069 should be ALLOWED.

The subject garment, a women’s 100% cotton top referred to as style number 8753, is classified in subheading 6114.20.0010, HTSUSA, which provides for: “Other garments, knitted or crocheted: Of cotton, Tops: Women’s or girls’.” At the time of entry (April 2003), merchandise imported under this subheading was dutiable at the rate of 10.9 percent ad valorem. The applicable textile category designation is 339.

In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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