CLA-2 CO:R:C:G 087492 HP

Mr. John F. Consolini
Executive Vice President/Chief Executive Officer
Bernard Chaus Inc.
1410 Broadway
New York, NY 10018

RE: HRL 085695 modified. Women's tops with no opening at neckline cannot be classified under heading 6106. T - Shirt; pullover

Dear Mr. Consolini:

This is in reference to HRL 085695 of October 17, 1989. In that letter, we addressed whether five styles of women's tops could be classified as t-shirts under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue in HRL 085695 consisted of:

Model ST-323 is a beige short sleeve 100% knit cotton garment with a crew neck, shoulder pads attached by means of Velcro-like attachments, a hemmed waist, one back panel and four front panels, and sleeves measuring approximately 9.5" high by 5.75" long, with tightening devices at the ends.

Model ST-410 is a yellow-gold short sleeve 100% cotton knit garment with a crew neck, shoulder pads attached by means of Velcro-like attachments, a hemmed waist, one back and one front panel, a front patch pocket, and hemmed sleeves measuring approximately 9.5" high by 8" long.

Model ST-380 [, a tank top, is not subject to this modification.]

* * * Style 1086539 is a blue three-quarter sleeve 100% knit cotton top with a crew neck, a hemmed bottom with hemmed slit sides, shoulder pads attached by means of Velcro-like attachments, one front and one back panel, sleeves measuring approximately 11.25" high by 13" long, and an ornamented woven applique of unknown material sewn onto the front of the garment. The applique consists of a printed design in an equine theme, a thick rope border glued to the design, raised threads in imitation of a horse's mane, and plastic tubes, balls and imitation jewelry sewn onto the design.

Style 1226679 is a pink and white striped short sleeve top with a heavy herringbone-like crew neck, a primarily hemmed waist with slit sides, heavy herringbone-like fabric sewn onto the slits, shoulder pads attached by means of Velcro-like attachments, one front and one back panel, sleeves measuring 11.75" high by 6.5" long, and an ornamented woven applique of 100% rayon sewn onto the front of the garment. The applique consists of a printed design in a floral theme, with plastic tubes, bamboo tubes, plastic balls, and what appears to be metallized yarn sewn onto the design.

ISSUE:

Whether the classification of these garments was correct?

LAW AND ANALYSIS:

In HRL 085695, we underwent a thorough analysis as to whether the garments could be classified as t-shirts under the HTSUSA. In concluding that four of the five tops could not be categorized as such, we held that the garments were therefore classified under subheading 6106.10.0010, HTSUSA, as women's blouses or shirts. This determination was incorrect.

The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to Chapter 61 states that: Shirts and shirt-blouses are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline. [Emphasis added.]

Since none of the garments at issue had an opening at the neckline, they cannot be considered women's blouses or shirts under heading 6106. HOLDING:

As a result of the foregoing, the instant merchandise (ST-323, ST-410, 1086539, & 1226679) is classified under subheading 6110.20.2075, HTSUSA, textile category 339, as sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, of cotton, other, other, other, women's or girls'. The applicable rate of duty is 20.7 percent ad valorem.

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 negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an 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, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

This notice to you should be considered a modification of HRL 085695 of October 17, 1989, as to the merchandise described as women's tops, under 19 C.F.R. 177.9(d)(1) (1989). It is not to be applied retroactively to HRL 085695 (19 C.F.R. 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 085695 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to the release of HRL 087492 will be classified under the new ruling. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances.


Sincerely,

John Durant, Director
Commercial Rulings Division