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HQ 950855

April 10, 1992

CLA-2 CO:R:C:T 950855 SK


TARIFF NO.: 6110.20.2065

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.


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.

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."


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?


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
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
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.

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.


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.


John Durant, Director

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