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HQ 953999

August 11, 1993

CLA-2 CO:R:C:T 953999 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2075; 6109.10.0070

District Director
U.S. Customs Service
U.S. Customhouse
1 East Bay Street
Savannah, GA 31401

RE: Decision on Application for Further Review of Protest No. 1704-91-100083 and 1704-91-100085; proper classification in heading 6110, HTSUSA, and 6109, HTSUSA; consideration of conspicuous and inconspicuous features in classifying garments as similar to T-shirts

Dear Sir:

This is a decision on application for further review of two protests timely filed on behalf of U.S. Shoe Corporation on March 12, 1991, against your decision regarding the classification of certain cotton knit garments. All entries were liquidated on December 1, 1990 and December 14, 1990. Samples were provided to this office.

FACTS:

The merchandise at issue consists of a variety of styles of short-sleeved, cotton knit upper body garments for women. Most of the garments have a round crew neckline, hemmed bottom and sleeves, and are imported from Israel. Protest Number 1704-91- 100083 regards Style Numbers 95013, 96016 and 95003. Styles 95013 and 96016 are identical; both are oversized garments, featuring large armholes, shoulder pads and a patch chest pocket with no closure. Style 95003 features a buttoned inset pocket, detachable shoulder pads secured by means of velcro, and a decorative label sewn onto the left sleeve.

Protest Number 1704-91-100085 regards Style numbers 05000, 96015 and 60037. Styles 05000 and 96015 feature oversize armholes, a dropped shoulder, sleeves that are not close fitting and detachable shoulder pads secured by means of velcro. Style 60037 is virtually identical except that it features a close- fitting v-neckline and the shoulder pads are sewn into the garment.
These garments were classified and liquidated in subheading 6110.20.2075, HTSUSA, which provides for sweaters, pullovers, sweatshirts, waistcoats and similar items. The importer contends that the garments are unlike the garments of heading 6110, HTSUSA, and that proper classification of the garments is in heading 6109, HTSUSA.

ISSUE:

Whether removable shoulder pads and oversized features preclude classification of these garments as T-shirts or similar to T-shirts in heading 6109, HTSUSA, or whether classification in heading 6110, HTSUSA, is appropriate?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 6109, HTSUSA, provides for, among other things, T-shirts and garments similar to T-shirts. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) define T-shirts as:
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). These garments may have decoration, other than lace, in the form of advertising, pictures or an inscription in words, obtained by printing, knitting or other process. The bottom of these garments, usually hemmed, is never made with a ribbed waistband, drawstring or other means of tightening.

(Emphasis added).

The Textile Category Guidelines, CIE 13/88, dated November 23, 1988 (Guidelines), similarly define T-shirts as:
constructed of the underwear type and from lightweight, knit underwear-type fabric, not napped, nor of pile or terry fabric, with or without pockets, and with long or short close-fitting sleeves. The garments should have a close- fitting or lower neckline (round, square, boat-shaped or V-shaped) and may have decoration, other than lace, in the form of pictures, words, or letters, obtained by printing, knitting or other processes. The bottom of the garment is usually hemmed. A ribbed waistband, a drawstring, or other tightening at the waist is not allowed. Buttons or other fastenings, openings in the neckline, and collars, are not allowed. (Emphasis added).

Close examination of the garments reveals that the garments feature several combinations of conspicuous and/or inconspicuous features distinguishing them from the traditional T-shirt garment. Both the EN to heading 6109, HTSUSA, and the Guidelines are clear in defining in explicit terms that in order for a garment to be considered a T-shirt, it must have close-fitting sleeves.

In classifying garments there are certain considerations which assist in the determination of a T-shirt or similar to T- shirt classification. These are as follows:

T-shirt:

The garment must have all the required features (as per the EN and Guidelines), i.e., lightweight knit or crocheted fabric, of cotton or man-made fabric, close-fitting sleeves, and close-fitting or lower neckline. The garment cannot consist of napped, pile or terry fabric, it cannot have buttons or other fastenings, or a collar, and the bottom of the garment cannot be made with a ribbed waistband, drawstring or other means of tightening.

Similar to T-shirt:

1. one inconspicuous feature- e.g. shoulder pads 2. two inconspicuous features- e.g. shoulder pads and embroidery

Accordingly, to qualify as similar to a T-shirt, the article must have traditional T-shirt features and no more than two inconspicuous features. The presence of three inconspicuous features or even one conspicuous feature (as in this case, sleeves which are not close-fitting) precludes classification as similar to T-shirt.

None of the garments in Protest Number 1704-91-100083 meet the definition of the traditional T-shirt garment. Styles 95013 and 96016 are very oversized garments; this is a conspicuous feature precluding classification in heading 6109, HTSUSA. Style 95003 is slightly larger than a traditional size medium T-shirt and also features a combination of three inconspicuous features (i.e., a buttoned inset pocket, detachable shoulder pads and a decorative label sewn onto the left sleeve), which similarly precludes its classification in heading 6109, HTSUSA.

In Protest Number 1704-91-100085, neither Styles 05000 nor 96015 have the requisite close fitting sleeves indicative of a T- shirt garment and as such they cannot be accorded classification in heading 6109, HTSUSA. Style 60037 on the other hand, has what are considered "traditional" T-shirt features, namely, lightweight, knitted jersey fabric, short, hemmed sleeves which are close fitting, and a straight hemmed bottom. The presence of the shoulder pads is not a conspicuous non-T-shirt feature and therefore does not preclude its classification in heading 6109, HTSUSA. The presence of the shoulder pads brings it to the "other" subheading level of heading 6109, HTSUSA, as similar to T-shirt.

HOLDING:

The garments referred to as Styles 95013, 96016 and 95003, in Protest Number 1704-91-100083, and Styles 05000 and 96015, in Protest Number 1704-91-100085, were properly classified in subheading 6110.20.2075, HTSUSA, which provided for women's or girls' sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted, of cotton, other. The applicable rate of duty for that subheading in 1989, when the articles were imported from Israel, was 5.3 percent ad valorem with a 339 quota category.

Style 60037 in Protest Number 1704-91-100085, was improperly classified in heading 6110, HTSUSA. Proper classification is in subheading 6109.10.0070, HTSUSA, which provides for women's or girls' T-shirts, singlets, tank tops and similar garments, knitted or crocheted, of cotton, other. The applicable rate of duty for that subheading in 1989, when the articles were imported from Israel, was 21 percent ad valorem with a 339 quota category.

The protest should be granted in part; that is, only as it applies to Style 60037. A copy of this ruling should be appended to the Form 19 Notice of Action and furnished to the protestant.

Sincerely,

John Durant, Director

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