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HQ 085021


SEPTEMBER 18, 1989

CLA-2 CO:R:C:G 085021 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6107.12.0010; 6109.90.1045

Mr. Du Baolai, Second Secretary
Embassy of the People's Republic of China 2300 Connecticut Avenue, N.W.
Washington, D.C. 20008

RE: Classification of Thermal Underwear

Dear Mr. Du:

This ruling is in response to your letter of July 7, 1989, concerning the tariff status of men's thermal underwear manufactured in China.

FACTS:

Two samples were submitted, each put up for retail sale in its own plastic packaging. One sample is a man's thermal underwear shirt for the upper body. It is a long sleeve knit pullover garment with attached rib-knit cuffs, a straight unhemmed bottom, and a rib-knit band around the neck opening. The other sample is a man's lower body thermal underwear garment that extends to the ankles. It has an attached elasticized waistband and attached rib-knit cuffs. Both garments are knit and are labeled to be 65 percent polyester and 35 percent cotton by weight.

ISSUE:

Unlike its predecessor, the Tariff Schedules of the United States Annotated (TSUSA), the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) does not have a heading which specifically provides for underwear. Therefore, the issue is which heading or headings are applicable to these garments.

LAW AND ANALYSIS:

Since the two garments are packaged separately for retail sale and there is no requirement that they be classified as a single unit, each garment is separately classifiable.

Heading 6107, HTSUSA, provides for knitted "men's and boys' underpants, briefs, nightshirts, pajamas, bathrobes, dressing gowns and similar articles." It has been suggested to this office that this heading covers both sample garments.

The Harmonized Commodity Description and Coding System, Explanatory Notes, which are the official interpretation of the HTSUSA at the international level, state, at page 838, that Heading 6107 covers two separate categories of knitted garments for men or boys, one of which is underpants, briefs, and similar articles, and the other being nightshirts, pajamas, bathrobes, dressing gowns and similar articles.

The Thermal Underwear Shirt

Since the instant shirts are not any of the named articles in Heading 6107, to be classifiable in that heading they must be similar to one of the named articles. While underpants, briefs, and the thermal underwear shirts may all be underclothing, we are unable to conclude that the thermal underwear shirts are garments that are similar to the other two garments. Shirts differ markedly in appearance from underpants and briefs and are worn on a different part of the body. Following the doctrine of ejusdem generis, the thermal underwear shirt is not classifiable under Heading 6107.

Heading 6109, HTSUSA, provides for knitted "T-shirts, singlets, tank tops and similar garments." This wording is a slight modification of the international heading language, which is "T-shirts, singlets and other vests," however, the coverage is the same. The Explanatory Notes, at page 839, state:

The term "T-shirts", means lightweight knitted or crocheted garments of the vest type, of cotton or man-made fibre, not napped, nor of pile or terry fabric, in one or more colours, with or without pockets, with long or short close-fitting sleeves, without buttons or other fastenings, without collar, without opening in the neckline, having a close-fitting or lower neckline (round, square, boat-shaped or V-shaped). * * * The bottom of these garments, usually hemmed, is never made with a ribbed waistband, drawstring or other means of tightening.

This heading also includes singlets and other vests.

It is our understanding, which is supported by lexicon definitions, that the word "vest" is an English term which refers to an undershirt. Accordingly, it is apparent from the quoted portion of the Explanatory Notes that the term "vest," as used in the international version of the Harmonized System, is a use of the English terminology and does not refer to the typical garment considered in the United States to be a vest. Since the thermal underwear shirt is similar to a long sleeve T-shirt in appearance and use, it is classifiable in Heading 6109.

The Thermal Underwear Pants

In looking at the wording of Headings 6107 and 6109 and the explanatory notes for those headings, it is our view the drafters of the international nomenclature intended that most knit underwear be classified in Heading 6107, if for lower body coverage, and in Heading 6109, if for upper body coverage. The notable exception to that rule is body supporting articles classifiable in Heading 6212, HTSUSA.

Further, as stated above, the Explanatory Notes state that Heading 6107 includes men's or boys' knit underpants, briefs, and similar underclothing articles. Thermal underwear pants fall within that category of goods.

HOLDING:

The subject thermal underwear shirts are classifiable under the provision for other men's or boys' knitted T-shirts and similar garments, of man-made fibers, in Subheading 6109.90.1045, HTSUSA, with duty, as a product of China, at the rate of 34 percent ad valorem. Textile and Apparel Category 638 has been designated as applicable to merchandise classifiable under that tariff provision.

The subject thermal underwear pants are classifiable under the provision for men's knit underpants, of man-made fibers, in Subheading 6107.12.0010, HTSUSA, with duty, as a product of China, at the rate of 16 percent ad valorem. Textile and Apparel Category 652 has been designated as applicable to merchandise classifiable under that tariff provision.

Sincerely,

John Durant, Director

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