HQ 085021: Classification of Thermal Underwear

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 085021

                       SEPTEMBER 18, 1989


CLA-2 CO:R:C:G  085021  PR

CATEGORY:  Classification

TARIFF NO.:  6107.12.0010; 6109.90.1045

Mr. Du Baolai, Second Secretary
Embassy of the People's Republic of China
2300 Connecticut Avenue, N.W.
Washington, D.C. 20008

RE:  Classification of Thermal Underwear

Dear Mr. Du:

     This ruling is in response to your letter of July 7, 1989,
concerning the tariff status of men's thermal underwear
manufactured in China.

FACTS:

     Two samples were submitted, each put up for retail sale in
its own plastic packaging.  One sample is a man's thermal
underwear shirt for the upper body.  It is a long sleeve knit
pullover garment with attached rib-knit cuffs, a straight
unhemmed bottom, and a rib-knit band around the neck opening.
The other sample is a man's lower body thermal underwear garment
that extends to the ankles.  It has an attached elasticized
waistband and attached rib-knit cuffs.  Both garments are knit
and are labeled to be 65 percent polyester and 35 percent cotton
by weight.

ISSUE:

     Unlike its predecessor, the Tariff Schedules of the United
States Annotated (TSUSA), the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) does not have a heading which
specifically provides for underwear.  Therefore, the issue is
which heading or headings are applicable to these garments.

LAW AND ANALYSIS:

     Since the two garments are packaged separately for retail
sale and there is no requirement that they be classified as a
single unit, each garment is separately classifiable.

     Heading 6107, HTSUSA, provides for knitted "men's and boys'
underpants, briefs, nightshirts, pajamas, bathrobes, dressing
gowns and similar articles."  It has been suggested to this
office that this heading covers both sample garments.

     The Harmonized Commodity Description and Coding System,
Explanatory Notes, which are the official interpretation of the
HTSUSA at the international level, state, at page 838, that
Heading 6107 covers two separate categories of knitted garments
for men or boys, one of which is underpants, briefs, and similar
articles, and the other being nightshirts, pajamas, bathrobes,
dressing gowns and similar articles.

The Thermal Underwear Shirt

     Since the instant shirts are not any of the named articles
in Heading 6107, to be classifiable in that heading they must be
similar to one of the named articles.  While underpants, briefs,
and the thermal underwear shirts may all be underclothing, we are
unable to conclude that the thermal underwear shirts are garments
that are similar to the other two garments.  Shirts differ
markedly in appearance from underpants and briefs and are worn on
a different part of the body.  Following the doctrine of ejusdem
generis, the thermal underwear shirt is not classifiable under
Heading 6107.

     Heading 6109, HTSUSA, provides for knitted "T-shirts,
singlets, tank tops and similar garments."  This wording is a
slight modification of the international heading language, which
is "T-shirts, singlets and other vests," however, the coverage
is the same.  The Explanatory Notes, at page 839, state:

        The term "T-shirts", means 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).  * * *  The bottom of these garments, usually
     hemmed, is never made with a ribbed waistband, drawstring or
     other means of tightening.

        This heading also includes singlets and other vests.

     It is our understanding, which is supported by lexicon
definitions, that the word "vest" is an English term which
refers to an undershirt.  Accordingly, it is apparent from the
quoted portion of the Explanatory Notes that the term "vest," as
used in the international version of the Harmonized System, is a
use of the English terminology and does not refer to the typical
garment considered in the United States to be a vest.  Since the
thermal underwear shirt is similar to a long sleeve T-shirt in
appearance and use, it is classifiable in Heading 6109.

The Thermal Underwear Pants

     In looking at the wording of Headings 6107 and 6109 and the
explanatory notes for those headings, it is our view the
drafters of the international nomenclature intended that most
knit underwear be classified in Heading 6107, if for lower body
coverage, and in Heading 6109, if for upper body coverage.  The
notable exception to that rule is body supporting articles
classifiable in Heading 6212, HTSUSA.

     Further, as stated above, the Explanatory Notes state that
Heading 6107 includes men's or boys' knit underpants, briefs, and
similar underclothing articles.  Thermal underwear pants fall
within that category of goods.

HOLDING:

     The subject thermal underwear shirts are classifiable under
the provision for other men's or boys' knitted T-shirts and
similar garments, of man-made fibers, in Subheading 6109.90.1045,
HTSUSA, with duty, as a product of China, at the rate of 34
percent ad valorem.  Textile and Apparel Category 638 has been
designated as applicable to merchandise classifiable under that
tariff provision.

     The subject thermal underwear pants are classifiable under
the provision for men's knit underpants, of man-made fibers, in
Subheading 6107.12.0010, HTSUSA, with duty, as a product of
China, at the rate of 16 percent ad valorem.  Textile and Apparel
Category 652 has been designated as applicable to merchandise
classifiable under that tariff provision.


                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division