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HQ 951090


April 13, 1992

CLA-2 CO:R:C:T 951090 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0005

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

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