CLA-2 CO:R:C:T 950855 SK
Area District Director
U.S. Customs Service
Building 178
Jamaica, New York 11430
RE: Internal Advice Request 43/91; classification of upper body
garments; heading 6110, HTSUSA; openwork mesh knit fabric is not
crocheted and not commonly used for T-shirts; C.I.E. 1998/64;
T-shirts are lightweight jersey or interlock fabric garments
without conspicious features; EN to heading 61.09 and 61.10.
Dear Sir:
This ruling is in response to a request for internal advice
initiated by Grunfeld, Desiderio, Lebowitz & Silverman on behalf
of their client, M. Hidary & Company, Inc. At issue is the
proper classification and attendant quota/visa category of men's
and boys' cotton knit upper body garments.
FACTS:
Four samples of the merchandise were sent to this office for
examination. The samples are all of the same style, but in
different sizes and colors.
Style #4003 is a men's and boys' upper body garment which
is constructed from 100% cotton, openwork mesh knit fabric. The
garment features a round neckline and set-in short sleeves. The
neckline, sleeves and bottom are finished with three-quarter inch
wide rib knit capping.
Style #4003 was entered under the provision for T-shirts in
subheading 6109.10.0014, HTSUSA, at 21% ad valorem, and a visa
for textile quota category 338 was presented. Upon an
examination of the goods, style #4003 was classified under
subheading 6110.20.2065, HTSUSA, dutiable at 20.7% ad valorem
with an attendant textile/quota category of 338S from China.
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Counsel for the importer asserts that the subject
merchandise is appropriately classified as a T-shirt, under
heading 6109, HTSUSA, as it is constructed from lightweight
crocheted fabric and previous importations of identical
merchandise were entered and liquidated under this
classification. Counsel further contends that the importer
relied on Customs' practice of treating "substantially identical
merchandise" in a similar manner, i.e., accepting and releasing
the goods at issue as T-shirts in two prior instances.
The two previous entries were made on October 17, 1989 and
December 3, 1989. Customs issued a redelivery notice on December
10, 1990. The notice rejected the importer's classification of
the garments as T-shirts stating that the subject merchandise was
found "not composed of T-shirt material and therefore should be
classified as pullovers."
ISSUE:
Whether the mesh net fabric used in the manufacture of style
#4003 precludes classification of this garment as a T-shirt under
heading 6109, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated is in accordance with 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, taken in
order.
Heading 6109, HTSUSA, provides for "T-shirts, singlets, tank
tops and similar garments, knitted or crocheted." The
Explanatory Notes to the Harmonized System, (EN), Section XI, Ch.
61., at 839, further define the provisions of heading 61.09:
"The term 'T-shirts' means lightweight knitted or crocheted
garments of vest type, of cotton or man-made fiber, 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
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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."
The threshold issue is whether the subject merchandise is a
"lightweight knitted or crocheted garment of vest type." [Note
that the word "vest" is synonymous with "underwear" and is a term
more commonly used in the British vernacular. Although the word
"vest" is not often used interchangeably with the word
"underwear" in this country, this is a result of the nomenclature
and Explanatory Notes having been drafted through a process of
international collaboration where many terms in the English text
more often used in the United Kingdom have been incorporated into
the Tariff Schedule.] Counsel for the importer asserts that the
fabric used in the manufacture of these items is "crocheted" and
therefore satisfies the language in heading 6109, HTSUSA. An
examination of the fabric, however, reveals that the garment is
actually made from a drop stitch knit fabric, also referred to as
an openwork mesh knit. It is created by dropping specific knit
stitches to create a uniform pattern of openings approximately
one-eighth inch in width and one-quarter inch in length over the
entire surface of the fabric. The connecting knit surface area
is no more than one-eighth inch in width at any point. The
fabric is not crocheted as asserted.
Moreover, the fabric is not of a type used for underwear
garments. "Fishnet" or mesh fabrics are commonly used for
casual outerwear garments, not underwear. The underwear trade in
the United States recognizes only plain, lightweight jersey or
interlock fabric as conducive for the manufacture of underwear.
The three largest domestic manufacturers (Hanes, Fruit of the
Loom, and Munsingwear) show that jersey knit fabric is specified
for both underwear and fashion T-shirts. Customs has also long
recognized finely knit, lightweight interlock fabric as
acceptable T-shirt fabric. See Textile Category Guidelines,
C.I.E. 1998/64, page 3. This office is not willing to extend
such recognition to the fabric used in the construction of the
subject merchandise. See Headquarters Ruling Letter (HRL)
077733, dated September 11, 1986, where Customs ruled that a crew
neck pullover shirt was not a T-shirt for classification purposes
because of the net fabric used.
Although the language in heading 6109, HTSUSA, provides for
"crocheted" T-shirts as well as those that are knit, we note that
such articles must nevertheless be of underwear type. In other
words, in order for a crocheted garment to be properly
classifiable under heading 6109, HTSUSA, it can not distort the
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common and commercial identity of T-shirts which is understood in
the underwear industry to encompass plain garments of lightweight
jersey or interlock fabric. In this case, even if the fabric had
been crocheted, it would have to be of a weave so inconspicuous
as to preserve the garment's similarity to T-shirts. In the
instant case, the use of openwork mesh knit fabric is so
conspicuous as to destroy the subject merchandise's similarity to
T-shirts of either the underwear or fashion variety.
Accordingly, it is this office's opinion that the subject
mechandise does not satisfy the prerequisites set forth in the EN
to heading 61.09, HTSUSA, inasmuch as the garments are not made
from underwear type fabric.
Heading 6110, HTSUSA, provides for, inter alia, knit
pullovers and similar articles. The EN to heading 61.10, HTSUSA,
p. 840, state that this heading covers a category of knitted or
crocheted articles "designed to cover the upper parts of the
body." Counsel asserts that classification is not proper here
because "[t]he subject merchandise is more akin to the articles
provided for in heading 6109... ." Counsel further submits that
the articles provided for in heading 6110, HTSUSA, "are
characteristically made from heavier weight fabrics such as
fleece or sweater knits." There is no doubt that heavier fabrics
are used in the construction of articles classifiable under
heading 6110, HTSUSA. We note, however, that sweaters, pullovers
and waistcoats are made from a wide variety of fabrics, some of
which are quite light. Often sweaters are made from lightweight
cotton, waistcoats from silk, and pullovers from lightweight man-
made fabrics. Accordingly, we do not agree that the subject
merhandise is more appropriately classified in heading 6109,
HTSUSA, because it is made from a lightweight material. The
article at issue is a cotton knit pullover that is designed to
cover the upper parts of the body and classification is proper
under heading 6110, HTSUSA.
With regard to counsel's contention that the enactment of
the HTSUSA was not intended to change the quota classification of
garments that existed under the TSUSA, we note that garments such
as these were never properly classifiable under the provision
for T-shirts and therefore the textile category has not
arbitrarily changed. HRL 059681, dated February 1, 1979,
classified a similar article (short-sleeved garment of openwork
mesh fabric) as outerwear. As mentioned supra, a similar result
was reached in HRL 077733. Even if a garment had at one time
been classified differently under the TSUSA, and a subsequent
change in classification under the HTSUSA effected a change in
quota classification, this alone is not adequate basis for
reverting to the original classification.
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Counsel alleges that the importer relied on Customs' past
treatment of similar merchandise and asserts that Customs has
consistently classified similar merchandise as T-shirts. In
support of this, counsel cites HRL 059681 and Customs' treatment
of two earlier importations by the client. In HRL 059681 a mesh
athletic shirt was classified as a T-shirt but the short-
sleeved version was classified as outerwear. The holding in HRL
077733 also negates counsel's claim that Customs classified
similar merchandise as T-shirts. It is true that two prior
importations by M. Hidary & Company, Inc. were entered and
liquidated as T-shirts under heading 6109, HTSUSA. These
shipments were released without examination. If these two prior
shipments had been examined at the time of entry, it is certain
that they would have been classified as pullovers under heading
6110, HTSUSA, and detained until the proper visa/quota category
was obtained. There was, in fact, no prior uniform and
continuous practice of classifying merchandise identical to that
at issue as T-shirts under heading 6109, HTSUSA. Accordingly,
counsel's request that Customs delay the effective date of the
subject merchandise's classification as pullovers, pursuant to
19 CFR 177.9(e), is denied.
HOLDING:
The subject merchandise is classifiable under subheading
6110.20.2065, HTSUSA, which provides for sweaters, pullovers,
sweatshirts, waistcoats (vests) and similar articles, knitted or
crocheted: of cotton: other ... other: men's or boys', dutiable
at a rate of 20.7 ad valorem. The applicable textile category is
338.
The Notices of Redelivery for the entries of October 17,
1989 and December 3, 1989 are valid.
Sincerely,
John Durant, Director
Commercial Rulings Division