CLA-2 RR:CR:TE 962356 gah
Allison M. Baron
Sharrets Paley Carter & Blauvelt
67 Broad Street
New York, N.Y. 10004
RE: Modification of NY D82491, classification of women’s knit garment
Dear Ms. Baron:
This is in response to your letter of November 6, 1998, submitted on behalf of S.B.H. Intimates, Inc., requesting reconsideration of NY ruling D82491, dated September 23, 1998, on a women’s cotton rib knit upper body garment and a lower body garment. We have reviewed this ruling in light of the original submission, our conference with you on June 3, 1999, and your further submission on July 7, 1999. In your July 7, 1999, submission you withdrew your request for reconsideration of the upper body garment. We determine that NY D82491 is incorrect as to the classification of the knit shorts.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY D82491 was published on August 4, 1999, in the Customs Bulletin, Volume 33, Number 31.
FACTS:
The subject merchandise consists of one boy-leg styled non-underwear garment, style TT04. It is constructed from 100% cotton mid-weight rib knit fabric.
The shorts are a pull-on style with a covered elasticized waistband, and inch-wide binding encasing the leg openings. You claim that the lower body garment in question remains properly classified in heading 6108, HTSUSA, as women’s underpants. Counsel submits a letter from an intimate apparel buyer that indicates that she intends to market the goods in her store as underwear, and identifies the garment by style number. A print advertisement submitted was for garments not at issue.
ISSUE:
Is the lower body garment classifiable as women’s underwear in 6108? If not, is it classifiable as shorts in heading 6104 or as an other garment in 6114?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
In classifying the lower body garment, consideration of marketing information, and the design and construction details of the garment are instructive in determining whether or not it will be principally used as underwear. See Additional U.S. Rule of Interpretation 1(a). The abbreviated length of the garment, nine and one-half inches at the side seam, favors an underwear classification. The buyer’s statement of intent to market the garment as underwear supports such classification as well, but no other marketing information corroborating this intention is supplied.
The weight of the fabric favors an outerwear classification, because it is thick and heavy enough to interfere with the drapability of any outer garment worn over it. The fabric’s weight causes the waistband and leg hems to be rather thick in turn. Unlike underpants, there is no crotch gusset and no cotton lining in the crotch. See HQ 951205, dated June 16, 1992. The center seam and inseam are not sewn down flat. Rather, they are finished with an overcast seam finish, and the seam allowance is trimmed, all of which would cause irritation if worn next to the skin.
Counsel cites HQ 950503, dated June 19, 1992, for support of the proposition that classification depends on how the importer reasonably expects the garment to be worn. In the instant case, the single statement by a retail buyer as to her expectations is insufficient evidence of principal use.
Without supporting marketing information, the garment itself is the primary evidence of how the garment will be worn. Counsel disputes the notion that the lower body garment would interfere with the drapability of a garment worn over it, and claims that it is designed to have a close fit. Our analysis of the garment at issue is at odds with this statement. The fabric is 100% cotton, but the ribbing detracts from its softness. The garment stretches crosswise, but not lengthwise. There is no elastic in the legs. There is no spandex or nylon to enhance a close fit. The garment would leave a visible bulkiness and a ridge where it ends under any but the loosest fitting clothing. The garment’s features indicate that its principal use will be as outerwear. Classification in heading 6108 as underwear fails.
Counsel maintains that even if Customs finds that the garment is not briefs, panties, underpants or similar garments, that it is classifiable in subheading 6108.91.0015, as other cotton underwear. We disagree. A similar analysis would apply to the classification in heading 6108 of any underwear lower body garment.
Heading 6104 covers, inter alia, shorts. The provision is an eo nomine provision with no legal note defining or limiting the scope of the term shorts. Thus, heading 6104 captures all women’s shorts for all uses unless the garment cannot be considered commercially as outerwear shorts. HQ 957133, dated August 14, 1995. The abbreviated length of this garment raises the issue of whether they will be principally worn as outerwear shorts. If not, classification in heading 6114 as an other garment would result.
Explanatory Note (EN) 6104, by reference to the previous heading, notes that shorts are trousers which do not cover the knee, and that trousers envelop each leg separately. We interpret this guidance to mean that any amount of leg coverage as long as it ends above the knee is sufficient to specifically describe a garment as shorts. On the instant shorts, the binding at the leg opening is fashioned as a boy leg and extends about an inch down the leg. For these reasons, we believe the garment is specifically described as shorts in heading 6104.
HOLDING:
The lower body garment is classified in subheading 6104.62.2030, which provides for women’s cotton knit shorts, dutiable at 15.8 percent ad valorem and carrying textile category 348.
The designated textile and apparel category may be subdivided into parts. If so, 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 negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
NY D82491 dated September 23, 1998, is hereby modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division