CLA 2 RR:CR:TE 960744 SG
Ms. Angela Tumbarello
Cyrk, Inc.
3 Pond Road
Gloucester, MA 01930
RE: Classification of trousers; men’s or unisex
Dear Ms. Tumbarello:
This is in response to your letter of July 7, 1997, in which you enclose two binding rulings. B86097 and B85760, issued by Customs for the same style number trousers. You ask that we revoke B86097 as you state that the trousers are made to men’s specifications.
FACTS:
We have reviewed Los Angeles ruling PD B86097 dated June 16, 1997, issued in response to your May 29, 1997, letter requesting a classification ruling on Style MU3-04 trousers pursuant to the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have also reviewed New York ruling NY B85760 dated June 26, 1997, issued in response to your May 21, 1997, letter requesting a classification ruling on the same Style MU3-04 trousers.
The subject merchandise consists of a pair of polyester fleece knit trousers with a tunnel elastic waistband with an outside drawstring; two side seam pockets; a patch pocket in the rear; and rib knit cuffs at the ankles.
In NY B85760, Style MU3-04 trousers were determined to be men’s trousers based on your statement to New York that Style MU3-04 was made to men’s specifications. The trousers were therefore classified under subheading 6103.43.1520 HTSUSA, as men’s knit trousers of synthetic fibers. The duty rate was determined to be 29.5 percent ad valorem.
Los Angeles, on the other hand, determined that the trousers were unisex, as no information regarding size specifications was received. Accordingly, in B86097, the trousers
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were classified under subheading 6104.63.2011, HTSUSA, as women’s knit trousers of synthetic fibers. The duty rate was determined to be 29.5 percent ad valorem.
ISSUE:
Whether the subject merchandise is properly classifiable under Heading 6103, HTSUS, as men’s knit trousers or under Heading 6104, HTSUS as women’s knit trousers?
LAW AND ANALYSIS:
Classification of goods under the 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. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.
Chapter 61, Note 9, HTSUSA, provides that:
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’ garment. 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.
If it is determined that the subject trousers are men’s the applicable heading is Heading 6103, HTSUSA, which provides for, inter alia, men’s trousers. If not men’s, the applicable heading is Heading 6104, HTSUSA.
In your New York request you advised that the garment in question was a men's
garment. Your Los Angeles request did not indicate that the garment was designed for men. Nor have you produced any evidence that the garment is either made to men’s specifications or advertised as a men’s garment. We note that the garment itself does not have any particular features or characteristics indicative of a man's garment. The unconstructed styling and absence of a fly are more indicative of a garment that can be worn by either sex. Accordingly, applying Note 9, this garment is properly classifiable under the provisions for women’s apparel.
HOLDING:
The pants are properly classified in subheading 6104.63.2011. HTSUSA, which provides for Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted:
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Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other; Other; Other. The duty rate is determined to be 29.1 percent ad valorem and the quota category is 648.
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 renegotiations 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 internal issuance of the U.S. Customs Service, which 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 applicable to textile merchandise, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Section 177.2(b)(5), Customs Regulations (19 CFR 177.2(b)(5)) requires that a request for a ruling must “state whether, to the knowledge of the person submitting the request, the same transaction, or one identical to it, has ever been considered, or is currently being considered by any Customs Service office.” Since your June 26, 1997, ruling request did not state that you had requested a prior ruling on the same merchandise, the ruling you received in response to that request, New York ruling B85760, was void ab initio (from its inception) and will not be followed.
Sincerely,
John Durant, Director
Commercial Rulings Division