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]{.underline} (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

Commercial Rulings Division