CLA-2 CO:R:C:G 085748 CMR
Steven W. Baker, Esq.
Bellsey & Baker
100 California Street
Suite 670
San Francisco, California 94111
RE: Reconsideration of New York and District Rulings on the
classification of women's and girls' garments; Modifica-
tion of NYRL's 844764, 844765, 844606 and DRL 841854
Dear Mr. Baker:
This ruling is in response to your submission of
October 10, 1989, on behalf of your client, Esprit de Corp, San
Francisco, California, regarding classification of certain
girls' knit garments known as "skorts".
FACTS:
Several samples of garments commercially known as "skorts"
were submitted to the Customs Service for classification.
Rulings were issued by the Area Director, JFK Airport (841857),
and by the District Directors from Nogales, Arizona (841854),
Charleston, South Carolina (841853), and San Francisco,
California (841855). These rulings classified various styles
of these garments as divided skirts in subheading 6104.53.2020,
HTSUSA, textile category 642. In rulings issued by the Area
Director, New York Seaport (839407, 844606, 844764 and 844765),
similar styles of garments were classified as shorts in
subheading 6104.53.2060, HTSUSA, textile category 648.
Three skorts made of woven fabric were classified as
divided skirts in New York Ruling Letter (NYRL) 845234 of
September 14, 1989. Three others originally classified as
shorts in NYRL 840670 of May 10, 1989, were reclassified as
divided skirts in Headquarters Ruling Letter (HRL) 085040 of
October 2, 1989. You contend that the size and styling of the
woven garments appears almost identical to that of the knit
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garments and that the rulings which have been issued reflect an
inconsistency in the classification of "skorts" and lack an
indication of the standards applied in differentiating between
shorts and divided skirts.
According to your submission, Esprit's designers have
designed skorts in a manner to give the illusion that the
garment is a skirt. The design includes relatively large leg
circumferences, a longer front and back rise, and a relatively
shorter inseam than would be found in a pair of shorts designed
with the same leg length.
ISSUE:
Do the rulings cited above reflect an inconsistency in the
classification of "skorts"?
What are the standards used in differentiating between
shorts and divided skirts for classification purposes?
LAW AND ANALYSIS:
After reviewing the rulings at issue and the samples which
were ruled on therein, we must agree that there is an apparent
inconsistency in the classification of skorts. However, it
must be pointed out that skorts is a term developed by the
manufacturer to describe a type of garment which has various
styles. We believe that some of these styles may be
classifiable as divided skirts, while other styles may be more
properly classifiable as shorts. We do not believe we can make
a blanket ruling that all styles of skorts are classifiable the
same. Differences in fabric and/or front gathers may cause
similar styles to be differently classified. Each garment must
be judged on its own merits.
In Mary Brooks Picken's The Fashion Dictionary, a divided
skirt is defined as:
1. garment resembling [a] flared skirt, but divided and
stitched together to form separate leg sections. Worn
formerly by women for horseback riding. 2. CULOTTE.
(page 335)
Culotte is defined in Picken's as:
Informal trouser-like garment having leg portions that are
full and fall together to simulate a skirt. Worn as a
sports skirt. (page 99)
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As pointed out in your submission, the Textile Category
Guidelines, CIE 36/79, CIE 6/87, and CIE 13/88, in identical
language, include a category description for women's and girls'
skirts. The description includes a brief discussion of
culottes. The description, in pertinent part, reads as
follows:
Distinguished from skirts in this respect, but includable
in these categories, are culottes which, while retaining
the frontal appearance of a skirt with regard to
silhouette and fullness, are constructed so that the
garment is cut up the middle and each leg is individually
surrounded by fabric. However, when worn, the leg
separation is not apparent when viewed from the front. It
should be noted that gaucho pants have a construction
similar to culottes but without the fullness, and for
category purposes are classifiable as pants.
The criteria set forth in the Category Guidelines remains
the criteria used by the Customs Service to distinguish between
shorts and divided skirts. The Explanatory Notes, which are
the official interpretation of the HTSUS at the international
level, offer no help in making a distinction between these
garments. As you correctly point out, this requires a
subjective decision by the determining official. While an
objective test would be preferable, one has not been developed
as of yet, nor do we think it is likely one could be developed
and applied. The appearance of the garment from the front is
the key to its classification and that appearance may be
affected, as already pointed out, by differences in the fabric
used to make the garment and by the placement of gathers or
pleats on the front of the garment. For this reason, such
factors as leg circumference at the hem, shorter inseams and
longer front and back rises, while measurable, are not
determining factors in deciding if a garment is a divided skirt
or pair of shorts.
In your submission it is stated that of the four separate
requests submitted on May 30, 1989, Esprit expressed the
opinion that two of the sets should be classified as shorts and
the other two sets should be classified as divided skirts.
Esprit did not expect all of sets to be classified the same
although all of the sets were referred to as skorts.
The test for determining whether a garment should be
properly classified as shorts or as a divided skirt will remain
the same as it has been for the last ten years or more. The
determination will be based on the frontal appearance of the
garment and whether it has the appearance of a skirt with
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regard to silhouette and fullness, and whether the leg
separation is apparent when the garment is viewed from the
front. If possible, the garment should be on an individual for
whom it is sized when the test is applied.
HOLDING:
In respect to the garments classified in District Ruling
Letter (DRL) 841854 of June 9, 1989 (Nogales, Arizona), after
examining the garments, we believe some of those garments are
more properly classified as shorts and others are classifiable
as divided skirts. Styles 89978, 89930, 89278, 89230, and
89278 lack the appearance of skirts. Although the leg openings
are fairly full, in our opinion, the leg separation is too
readily apparent when the garments are viewed from the front.
It is our understanding that Esprit expected this set of
garments to be considered shorts. Style 89125 and style 89199
(larger versions of styles 89825 and 89899) are classifiable as
divided skirts in subheading 6104.53.2020, HTSUSA, textile
category 642, dutiable at 17 percent ad valorem. Styles 89825
and 89899 were viewed on a model of appropriate age and size
and, when worn, had the frontal appearance of a skirt.
The following styles (sized for years 7-8) were viewed on
a model of appropriate age and size: 19753, 19132, 19053, and
19274. The remaining garment samples for years 4-5 were
observed on a model of appropriate age and size. The
classification of these garments are based on the appearance of
the garments when worn by the models. The remaining styles are
classified based on examination of the garments.
The garments (styles 89825, 89840, 89899, and 89912)
classified in DRL 841855 of June 6, 1989 (San Francisco,
California), the garments (styles 89047, 89204, 89235, 89935,
89268, and 89289) classified in DRL 841853 of June 9, 1989
(Charleston, South Carolina), and the garments (styles 89747
and 89904) classified in DRL 841857 (Jamaica, New York) were
correctly classified as divided skirts in subheading
6104.53.2020, HTSUSA, textile category 642, dutiable at 17
percent ad valorem. The leg separation of the garments was not
clearly evident; the garments have the frontal appearance of
skirts.
In regard to New York Ruling Letter (NYRL) 844764 of
August 30, 1989, we believe styles 19985, 19856, 19959, 19924,
19915, 19753 and 19744 were properly classified as shorts in
subheading 6104.63.2060, HTSUSA, textile category 648, dutiable
at 30 percent ad valorem. The leg separation is apparent when
the garments are worn. However, styles 19974 and 19843 are
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more correctly classified as divided skirts in subheading
6104.53.2020, HTSUSA, textile category 642, dutiable at 17
percent ad valorem. When worn, the leg separation of the
garments was not clearly evident; the garments had the frontal
appearance of skirts. We could not locate a sample for style
19760 and therefore, its classification in NYRL 844764 cannot
be reconsidered by Headquarters at this time.
In regard to NYRL 844765 of September 1, 1989, we believe
styles 19053, 19274, 19132, and 19215 were properly classified
as shorts in subheading 6104.63.2060, HTSUSA, textile category
648, dutiable at 30 percent ad valorem. The leg separation is
apparent when the garments are worn. We do not appear to have
samples of 19044, 19156, 19041, 19060, or 19259. However,
provided 19744, 19856, and 19959, which are classified above,
are merely smaller versions of 19044, 19156 and 19959, those
garments would be similarly classified as shorts. Style 19143
is more correctly classified as a divided skirt in subheading
6104.53.2020, HTSUSA, textile category 642, dutiable at 17
percent ad valorem. The leg separation of the garment is not
clearly evident when the garment is viewed from the front. We
believe that when worn the garment will have the frontal
appearance of a skirt. Since we do not have samples of styles
19041 or 19060, we cannot reconsider their classification at
this time.
In regard to NYRL 844606 of August 22, 1989, style 19832
should be classified as shorts in subheading 6104.63.2060,
HTSUSA, textile category 648, dutiable at 30 percent ad
valorem. The leg separation is too apparent when the garment
is viewed from the front.
It is apparent from the inconsistent classifications that
have been issued in regard to these garments and the subjective
nature of the applicable test that it is advisable to seek
binding classification rulings on any style of skorts for which
there is some question as to whether the style will be
considered a divided skirt or shorts by the import specialist
at the port of entry.
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
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.
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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.
Pursuant to section 177.9, Customs Regulations (19 C.F.R.
177.9), New York Ruling Letters 844764, 844765, 844606 and
Nogales Ruling Letter 841854 are modified in conformity with
the foregoing.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
1cc: CITA
1cc: Legal Reference Section
1cc: Phil Robins