CLA-2 CO:R:C:T 951090 jb
Mr. Bo Fu Ho
Midas Worldwide Enterprise, Inc.
92-15 55th Avenue
Elmhurst, New York 11373
RE: Modification of NYRL 862628; classification of a T-shirt;
not a unisex garment; proper classification is under men's
wear, 6109.10.0005, HTSUSA.
Dear Mr. Ho:
This ruling is in response to your request, dated August 14,
1991, for reconsideration of NYRL 862628, dated May 5, 1991,
regarding the proper classification of T-shirts imported from the
People's Republic of China through the port of New York. Upon
further review, that classification is deemed to be in error and
is modified.
FACTS:
The submitted sample, Style MOO8, is a size Small, all-white
T-shirt constructed from 100 percent cotton, finely knit, jersey
fabric. Style MOO8 features a rib knit, crew neckline; short
hemmed sleeves; and a hemmed bottom. This sample appears to be a
different size garment than the one previously submitted and
ruled upon in NYRL 862628. For the purposes of this ruling, we
will assume that it is identical to the prior sample except for
size.
In correspondence dated April 12, 1991, you were asked to
identify the intended sex of the wearer of the garment because
the garment originally submitted was not marked as to size. In a
response dated April 17, 1991, you indicated that Style MOO8 was
a unisex garment. Consequently, Style MOO8 was classified under
the provision for women's T-shirts, of cotton; subheading
6109.10.0040, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). The ruling letter explained that unisex
garments are treated as women's wear for tariff purposes.
ISSUE:
Whether the subject merchandise is classifiable under
subheading 6109.10.0040, HTSUSA, as women's wear or under
subheading 6109.10.0005, HTSUSA, as men's or boys' underwear?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's) taken in order. GRI 1
provides that classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
In the Explanatory Notes to the HTSUSA, Section XI, Chapter
61, item 8, indicates that:
Articles of this chapter which cannot be identified as
either men's or boys' garments or as women's or girls'
garments are to be classified in the headings covering
women's or girls' garments.
Similar language was found under the previous tariff, the
Tariff Schedules of the United States (TSUS). Headnote 2, Part
6, Schedule 3, TSUS, stated that:
(c) "women's and girls' wearing apparel" is wearing
apparel..., including wearing apparel commonly worn by
either sex and not identifiable as being intended
exclusively for the wear of men or boys.
Based on the language found in Headnote 2 (c), TSUS, several
rulings were issued addressing unisex garments. In IA 43/84,
dated June 26, 1984, the ruling stated: "The construction of
the garment should be considered in determining the intended sex
of the wearer..." HRL 077815, dated August 26, 1986, was more
specific and stated that "garments that were made according to
men's specifications were 'identifiable as being intended for the
exclusive wear of men or boys.'" HRL 079054, dated April 27,
1987, similarly stated that a garment's construction should be
consulted in determining the sex of the intended wearer.
Though the HTSUSA has replaced the TSUS, the latter is often
used as a guideline. Because of the similarity in the the HTUSA
and the TSUS in this area, we believe the above rulings are
still applicable.
As explained above, a determination of the intended sex of
the wearer will look to the size specifications as well as to the
overall appearance of the garment. An examination of the size
Small T-shirt submitted to us reveals that the size
specifications are within range for men's size Small underwear
style T-shirts and are somewhat equivalent to a women's size
Medium. In addition, the overall appearance of the garment is
that of a man's underwear style T-shirt.
Although the style of a T-shirt is basic for both ladies'
and men's wear, the cut and shape of the garment is that of a
basic men's underwear T-shirt. Garments designed for women
often manifest characteristic features evidencing that they are
cut to fit the smaller female frame; wider in some areas and
narrower or shorter in others. There is nothing about the
submitted garment, whether in extra room in the chest area or
shortened length, which would imply that the sizing or cut of the
garment had been adjusted for wear by women.
The importer's assertion in the April 17, 1991,
communication was made in the belief that both men and women
could wear this basic pullover style garment. This is not the
case with the size specifications found on the submitted T-
shirt. The garment would comfortably fit a size Small man, but a
size Medium woman would require a size Small to obtain the same
fit. Similarly, a size Small woman would find the garment to be
large.
The garment's size specifications and its appearance
indicate that the garment at issue is men's wear and not a
unisex garment.
HOLDING:
The submitted garment, Style MOO8, is identifiable as men's
wear by both the sizing and cut of the garment and is
classifiable under subheading 6109.10.0005, HTSUSA, which
provides for men's or boys' all white T-shirts, in chief weight
of cotton. The duty rate is 21 percent and the textile quota
category is 352.
In order to ensure uniformity in Customs classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9 (d) (1), Customs Regulations (19 CFR 177.9 (d) (1)), NYRL
862628 is modified to reflect the above classification effective
with the date of this letter. If, after your review, you
disagree with the legal basis for our decision, we invite you to
submit any arguments you might have with respect to this matter.
Any submission you wish to make should be received within 30 days
of the date of this letter.
This modification is not retroactive. However, NYRL 862628
will not be valid for importations of the subject merchandise
arriving in the United States after the date of this notice. We
recognize that pending transactions may be adversely affected
(i.e., merchandise previously ordered and arriving in the United
States subsequent to this modification will be classified
accordingly.) If it can be shown that you relied on NYRL 862628
to your detriment, you may apply to this office for relief.
However, you should be aware 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, 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 importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division