CLA-2 CO:R:C:T 953842 SK
Linda Yamashita
NIKE, Inc.
One Bowerman Drive
Beaverton, Oregon 97005-6453
RE: Revocation of DD 881724 (1/22/93); classification of a knit
toddler T-shirt and one-piece playsuit; Note 8 to Chapter 61,
HTSUSA; unisex garments are classified as women's or girls'
garments; when sizing, styling and construction are gender
neutral, Customs will consider evidence of marketing and
advertising in determining the sex for which a garment is
intended; 6109.90.1060 and 6114.30.3030, HTSUSA.
Dear Ms. Yamashita:
On January 22, 1993, the Customs District Office in
Baltimore issued you District Ruling (DD) 881724, in which a
toddler T-shirt and one-piece playsuit were classified as boys'
garments under subheadings 6110.30.3050 and 6114.30.3020, HTSUSA,
respectively. Upon review, we find that ruling to be in error.
Our analysis follows.
FACTS:
Style 460406 is comprised of a toddler-size T-shirt and one-piece playsuit. The T-shirt is constructed with long sleeves, a
rib knit collar and cuffs, and an embroidered NIKE logo at the
left chest. The fabrication is 65 percent polyester and 35
percent cotton knit jersey. The one-piece playsuit is
constructed with contrasting rib binding at the armholes and
neck, snap crotch, elastic leg hems, and a screened
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NIKE logo at the front. The fabrication is 65 percent polyester
and 35 percent cotton knit jersey. The garments are sold in
toddler sizes 2T(small), 3T(medium) and 4T(large). Samples of
style 460406 were submitted in two different color schemes to
this office: light grey one-piece playsuit with purple T-shirt
and red, green and purple trim and a purple one-piece playsuit
with magenta T-shirt and teal, purple and magenta trim. A NIKE
brochure also depicts style 460406 in a striped version, with
black, white, blue, purple, red and grey stripes. These garments
are produced in Hong Kong.
NIKE has submitted several documents which state that the
garments at issue are designed as unisex garments. The documents
are as follows:
* NIKE submitted a corporate product marketing brief for boys',
toddler and infant size garments. In pertinent part, the brief
states that NIKE toddler and infant clothing provide the consumer
with the opportunity to purchase garments that are unisex in both
style and color. In the heading marked "Position/Attitude/
Theme," this document states that "there should be a unisex feel
to the colors so that the apparel can be worn by both boys and
girls";
* NIKE submitted a document labeled "Kids Apparel Fall '94
Consumer Focus." The sections labeled "Toddler" and "Infant"
both state that unisex styling is a feature that is offered to
the consumer in these sizes. In contrast, the sections labeled
boy's sizes 4-7 and 8-20 make no such claim. This document sets
forth who the expected consumers will be, who the competition is,
what NIKE's strengths are and why consumers should take advantage
of the opportunity to purchase NIKE infant, toddler and boys'
garments as opposed to other brands;
* NIKE submitted a compendium of color photographs bound in a
calendar-like fashion. All but two of the photographs depict
boys playing in boys'-size garments; the other two photographs
depict a boy toddler wearing the striped version of style 460406
and another boy toddler wearing a similar style garment. Buyers
can look at the color photos and, on the reverse side of the
photos, can examine color illustrations representing the
different styles available. This document also provides
information about fabric content, color availability, the dates
certain styles are available and wholesale and suggested retail
prices. Order forms are provided.
DD 881724 classified these garments as boys' pullovers and
one-piece playsuits under subheadings 6110.30.3050 and
6114.30.3020, HTSUSA, respectively. NIKE submits that these
classifications are incorrect inasmuch as the garments at issue
are
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unisex and therefore classifiable under subheadings 6109.90.1060
and 6114.30.3030, HTSUSA, as girls' garments.
ISSUE:
Whether NIKE style 460406 is classifiable as boys' toddler
garments or as unisex toddler garments?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI's.
Our threshold inquiry is whether the garments at issue are
boys' garments or unisex garments in which case they are
classifiable as girls' garments pursuant to Note 8 to Chapter 61,
HTSUSA. Note 8 states that articles of Chapter 61 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.
The forward to the Textile Category Guidelines, C.I.E.,
10/88, states:
"[U]nisex garments are usually sold in both men's and
boys' and in women's and girls' departments and stores.
Garments which are only sold in men's or boys' departments
or stores are usually not commonly worn by either sex and
therefore are not unisex.
In determining whether a garment is identifiable
as men's or boys', or as women's or girls', the following
should
be considered: 1) sizing, 2) construction, 3) styling and 4)
other
factors such as packaging, labeling, etc."
The garments at issue are to be sold in department stores
which sell both boys' and girls' clothing (i.e., Nordstroms,
Dillards, Dayton Hudson, May Co., etc.). NIKE states that style
460406 is to be displayed and sold in Infant/Toddler Departments
as
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unisex garments. The toddler sizing used for these garments
(i.e., 2T, 3T and 4T) is gender neutral. Similarly, the
construction and styling of these garments appears equally
suitable for use by either boys or girls. The garments do not
button left over right, nor is there any distinctive design
feature, pattern or logo which would render these garments
unsuitable for use by either boys or girls. NIKE is a well-known
manufacturer of sporting goods and sporting apparel. NIKE
manufactures clothes for men and boys as well as for women and
girls. The color schemes do not definitively designate these
garments for use by a particular sex. Grey, purple, magenta and
stripes in black, white, grey, red and blue are colors worn by
both sexes.
The fourth criterion listed in the Textile Category
Guidelines states that extrinsic evidence which establishes how a
garment is marketed will be considered when determining the sex
for which a particular garment is intended. NIKE has supplied
this office with several documents which present evidence that
style 460406 is a unisex garment, and there is nothing about the
design of this garment which contradicts this position.
Specifically, we note that the "Fall '94 Kids Apparel Product
Marketing Brief for Toddlers" stresses that these garments are to
be presented to consumers as offering unisex styling and colors.
The design of the garments and their color schemes are compatible
with this statement. This document also stresses that these
unisex garments are "a great vehicle to introduce 'NIKE TYKES'
label and packaging." The term NIKE TYKES is also gender
neutral.
The submitted brochure contains color photographs which
predominantly feature boys wearing NIKE garments; only two
photographs featuring boy toddlers wearing NIKE garments are
included. One toddler is shown wearing a striped version of
style 460406. Although the child model shown wearing style
460406 is a boy, and no girl models are included in this
brochure, we recognize that this may be a result of the fact that
a great majority of the brochure is devoted to boys' wear and
boys' wear in sizes 4-7 and 8-20 is not unisex. In keeping with
the boys' wear theme, a boy toddler is depicted wearing the
subject merchandise. NIKE dispels any presumption that style
460406 is only for boys by stating in the marketing documents
provided to buyers that NIKE toddler wear is unisex in styling
and color scheme (with the exception of NIKE JORDAN toddler wear
which is expressly designated as for boys).
As the garments at issue possess styling and color schemes
that are suitable for use by boys and girls, and evidence has
been presented which establishes that these garments are intended
to be marketed as unisex garments, this office is of the opinion
that style 460406 is a unisex garment and is therefore
classifiable under headings for girls' wear.
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The shirt component of style 460406 meets the definition of
T-shirt as set forth in the Textile Category Guidelines, C.I.E.
10/88, at page 12, and is classifiable under heading 6109,
HTSUSA.
The one-piece garment is classifiable as a girls' playsuit
under heading 6114, HTSUSA.
HOLDING:
DD 881724 is revoked.
The T-shirt component to style 460406 is classifiable under
subheading 6109.90.1060, HTSUSA, which provides for "T-shirts,
singlets, tank tops and similar garments, knitted or crocheted:
of other textile materials: of man-made fibers... women's or
girls': girls," dutiable at a rate of 34 percent ad valorem. The
attendant textile quota/visa category is 639.
The one-piece component to style 460406 is classifiable
under subheading 6114.30.3030, HTSUSA, which provides for "other
garments, knitted or crocheted: of man-made fibers: other...
sunsuits, washsuits, one-piece playsuits and similar apparel:
women's or girls'" dutiable at a rate of 16.1 percent ad valorem.
The attendant textile quota/visa category is 237.
The designated textile and apparel categories may be
subdivided into parts. If so, the 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
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your local Customs office.
Due to the 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.
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)), DD 881724
is revoked effective with the date of this letter.
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This revocation is not retroactive. However, DD 881724 will
not be valid for importations of the subject merchandise arriving
in the United States after the date of this notice.
Sincerely,
John Durant, Director
Commercial Rulings Division