CLA-2 CO:R:C:T 954130 CMR
TARIFF NO: 6105.10.0010
Margaret R. Polito, Esq.
Neville, Peterson & Williams
39 Broadway
New York, New York 10006
RE: Classification of a unisex polo shirt; left over right
closure; Note 8, Chapter 61, amended as of January 1, 1993
Dear Ms. Polito:
This is in response to your request of May 7, 1993, on behalf
of J. Crew, Inc., concerning the classification of a unisex knit
polo shirt, style 50383, to be imported from the Republic of Korea.
You are seeking classification of the garment in heading 6106,
HTSUSA, which provides for women's or girls' knitted or crocheted
blouses and shirts. For the reasons set forth below, the garment
is classifiable as a men's knit shirt in heading 6105, HTSUSA.
FACTS:
The garment at issue, style 50383, is a 100 percent cotton
pique knit polo shirt. The garment is described in your submission
as having short sleeves with ribbed knit cuffs, a ribbed collar,
a front placket opening that buttons left over right, an oversized
cut, and side vents. A sample garment was provided and a
catalogue was submitted in which the shirt was depicted. The shirt
is shown being worn by both men and women. The sizes specified in
the description are for men, however the catalogue ordering page
contains a conversion table for women's sizes.
ISSUE:
Is the garment at issue, style 50383, which is marketed and
sold as a "unisex" garment classifiable as a women's garment or as
a men's garment?
-2-
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
Presidential Proclamation 6515 of December 16, 1992 (Vol. 57
Federal Register, page 60053, December 17, 1992), modified the
Harmonized Tariff Schedule of the United States to, among other
things, conform the HTS with amendments made to the International
Convention on the Harmonized Commodity Description and Coding
System. One such modification involved Note 8 to Chapter 61.
[Note 8 to Chapter 62 was also modified in the same manner.] Note
8 was deleted and replaced with the following language:
Garments of this chapter designed for left over right closure
at the front shall be regarded as men's or boys' garments, and
those designed for right over left closure at the front as
women's or girls' garments. These provisions do not apply
where the cut of the garment clearly indicates that it is
designed for one or other of the sexes.
Garments 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.
In your submission, you argue that since the modification of
Note 8, Chapter 61, was made pursuant to Section 1205 of the
Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. Section
3005), which provides that the Harmonized Tariff Schedule shall be
modified to reflect changes adopted by the Customs Cooperation
Council (CCC), Customs should examine the background documents
published by the CCC preceding adoption of this amendment.
Customs has reviewed the relevant CCC background documents.
However, we have reached a different conclusion than the one you
espouse. The comments in these documents are merely that, comments
made by various Customs administrations in discussing the problem
of distinguishing men's and boys' garments from women's and girls'.
The comments illustrate the process; the amended Note 8 to Chapter
61 is the outcome. Nothing in the history of this amendment
indicates that an interpretation other than one based on the clear
language of the Note is warranted. We believe the language of the
Note is clear and unambiguous. The courts have stated in
numerous cases that where the language -3-
of the statute is clear on its face there is no room for
construction. Sandoz Chemical Works, Inc. v. United States, 50
CCPA 31, C.A.D. 815 (1963); Vandegrift & Co. v. United States, 3
Ct. Cust. Appls. 176, T.D. 32462 (1912).
As to the International Trade Commission (ITC) report you cite
to support your view that the amended Note 8 should be interpreted
in a manner to insure that "unisex" garments with left over right
closures will be classified as women's or girls', the report did
not address this note specifically. In fact, the portion of the
report on which you rely states:
In the Commission's judgment, the proposed amendments do
not alter existing Customs tariff treatment of the commodities
involved. Consequently, it is believed that the recommended
amendments will have no probable economic effect on U.S.
industry or labor.
In other words, the Commission was reporting its view, i.e.,
opinion, in regard to the proposed amendments as a whole and
looking at probabilities of subsequent economic effects. Customs
is bound by the language of the statute, not the opinion of the
ITC. We believe a very small number of garments may be
reclassified as a result of the amendment of Note 8. Even in that
instance, the duty rate for men's knit cotton shirts and women's
knit cotton shirts is currently the same.
In regard to the last document you have submitted, a letter
to the ITC identified as Customs file number 086573, this is not
a ruling, but a comment made by Customs as part of the ITC's
section 1205 investigation. Additionally, the recommended change
in regard to Note 8 was not adopted; the wording was not changed
from that adopted internationally. Customs must apply Note 8 as
it is written, not as we proposed that it be written.
Designation of a garment as a "unisex" garment does not
determine its classification. It may be of interest to note that
the tariff does not use the term "unisex"; nor does it appear in
the Explanatory Notes to the Harmonized Commodity Description and
Coding System.
We note your arguments in regard to use of "unisex" garments
by both sexes and marketing of such garments to both. While it is
true that in determining the classification of a garment we often
look to the manner in which it is used, Note 8 does not rely on
use, but on the construction of garments. Note 8 to Chapter 61 was
amended to clarify and facilitate classification of garments as
men's and boys' or women's and girls' by looking to construction
features, not marketing.
Finally, Note 8 clearly states that "garments designed with
left over right closure at the front shall be regarded as men's -4-
or boys' garments,...". This does not apply where the "cut" of
the garment clearly indicates it is designed for one or other of
the sexes. Therefore, unless the "cut" of the garment indicates
otherwise, garments with left over right front closures are
classifiable as men's or boys' garments.
You argue for a broad interpretation of "cut" so as to look
at the style or various characteristics of garments. In your view,
a broad interpretation would allow Customs to use the factors
advocated in our letter to the ITC mentioned earlier. We reject
this reasoning. The term "cut" was the term chosen by the CCC
while other broader terms, such as characteristics and design
features, were rejected in drafting Note 8. The wording of the
amended Note 8 was not changed prior to its adoption as part of
the U.S. tariff. Reviewing the relevant CCC documents, we find no
support for your position. In fact, a review of the documents
leads to quite the opposite conclusion. While these documents are
not binding on Customs, they do shed light on the intended scope
of Note 8. See, T.D. 89-90. We will not broaden the scope of the
term "cut" through creative interpretation to encompass concepts
which we know were considered and rejected. However, we still must
determine what is meant by "the cut of the garment".
Customs believes the term "cut" implies construction or design
detail created to accommodate the body structure. This view is
consonant with the approach of choosing the direction of closure
as indicative of classification as male or female apparel. The
direction of closure is an element of the construction of a
garment. It follows then that only when other elements of the
construction of the garment, such as the placement of darts,
clearly indicate otherwise will the classification indicated by the
direction of closure not prevail.
Since the garment at issue has a left over right closure at
the front and the cut of the garment does not clearly indicate the
garment is designed for one or the other sex, applying Note 8 to
Chapter 61, the garment is classifiable as a men's garment.
HOLDING:
The garment at issue, a knit polo shirt, style 50383, is
classifiable as a men's knit shirt in subheading 6105.10.0010,
HTSUSA, textile category 338, dutiable at 21 percent ad valorem.
Your sample has apparently been misplaced. It will be
returned, as requested, when located.
The designated textile and apparel category 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 -5-
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 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