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HQ 954130


August 11, 1993

CLA-2 CO:R:C:T 954130 CMR

CATEGORY: CLASSIFICATION

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?

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

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