CLA-2 CO:R:C:G 084767 HP
Ms. Doreen Wai
Second Secretary
Hong Kong Economic & Trade Affairs
Hong Kong Economic and Trade Office
British Embassy
1233 20th Street, N.W., Suite 504
Washington, DC 20036
RE: Classification of ladies' panties
Dear Ms. Wai:
This is in reply to your letter of May 31, 1989, concerning
the tariff classification of ladies' panties, produced in Hong
Kong, under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). Reference Case No. HK110/89, Mast Indus-
tries, Inc.
FACTS:
The merchandise at issue consists of white ladies' panties.
The entire front of the garment is composed of 87 percent nylon
and 13 percent spandex knitted lace. The back of the garment is
composed of 94 percent cotton and 6 percent spandex fabric. The
overall percentage by weight of the fibers of the panties is 56
percent cotton, 35 percent nylon, and 9 percent spandex.
ISSUE:
Whether the weight of the entire garment should be taken
into account in determining classification under HTSUSA?
LAW AND ANALYSIS:
Subheadings 6108.21 through 6108.29, HTSUSA, provide for
women's or girls' briefs and panties, knitted or crocheted.
Subheadings 6208.91 through 6208.99, HTSUSA, provide for, inter
alia, women's or girls' panties, not knitted or crocheted. The
Explanatory Notes to the HTSUSA constitute the official
interpretation of the tariff at the international level. The
General Explanatory Notes to Chapters 61 and 62 state:
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The classification of goods in [these] Chapter[s] is
not affected by the presence of parts or accessories
of, for example, knitted or crocheted fabrics, furskin,
feather, leather, plastics or metal. Where, however,
the presence of such materials constitutes more than
mere trimming the articles are classified in accordance
with the relative Chapter Notes . . . or failing that,
according to the General Interpretative Rules.
Accordingly, the goods of Chapters 61 and 62 with relatively
unimportant linings, shoulder pads, pockets, etc., should be
classified according to Subheading Note 2(A) to Section XI,
HTSUSA (chief weight), without considering those trimmings.
Where, however, those goods have parts or accessories that
contribute materially to their character or usefulness (for
example, heavy weight linings which provide a substantial degree
of warmth to the wearer), then the outer shells and other signif-
icant portions must be considered in determining the proper
classification of those goods. In this situation, it is
appropriate to utilize Subheading Note 2(B)(a) of Section XI,
HTSUSA.
The General Rules of Interpretation (GRI's) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
... classification shall be determined according to the
terms of the headings and any relative section or
chapter notes ....
Goods which cannot be classified in accordance with GRI 1 are to
be classified in accordance with subsequent GRI's, taken in
order.
Subheading Note 2 to Section XI, HTSUSA, provides, in
pertinent part:
(A) Products of chapters 56 to 63 containing two or
more textile materials are to be regarded as consisting
wholly of that textile material which would be selected
under note 2 to this section for the classification of
a product of chapters 50 to 55 consisting of the same
textile materials.
(B) For the application of this rule:
(a) Where appropriate, only the part which deter-
mines the classification under general
interpretative rule 3 shall be taken into account.
Note 2(A), Section XI, to which Subheading Note 2(A) refers,
provides:
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Goods classifiable in chapters 50 to 55 or in heading
5809 or 5902 and of a mixture of two or more textile
materials are to be classified as if consisting wholly
of that one textile material which predominates by
weight over each other textile material.
In applying the Section Note, we have stated that:
Subheading Note 2(A) is dependent on the
application of Section XI Note 2(A). The subheading
note states that the classification of textile garments
and articles will be governed by the textile material
selected under the section note. However, the section
note is directed towards the classification of yarns
and fabrics which are a "mixture" of two or more text-
ile materials. According to the Harmonized Commodity
Description and Coding System, Explanatory Notes, at
page 705 . . ., textile materials may be mixed:
-prior to or during spinning;
-during twisting;
-during weaving.
Accordingly, the mixture of textile materials
contemplated in the section note is not a mixture of
two or more separate fabrics. Before the subheading
note, which is predicated on the section note, can be
utilized, it must first be determined to which of the
fabrics comprising the article the section note (and,
therefore, the subheading note) applies.
The garment in question is made of [several]
fabrics. If those fabrics were imported together in
fabric form, Section XI Note 2(A) would not require
that the weights of their components be compared and
that classification be according to the textile mater-
ial which predominates. Rather, they would be classi-
fiable as separate fabrics. Therefore, where separate
fabrics are combined to form a textile garment or
article [as in the instant matter], GRI 3 is utilized
first to select which fabric [(and which part of the
garment that fabric comprises)] will determine
classification.
HRL 084012 PR of June 12, 1989.
Accordingly, where the instant merchandise contains parts
that materially contribute to its character or usefulness (i.e.,
the lacing), those parts must be considered along with all others
in determining the applicable classification. Following Sub-
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heading Note 2(B)(a) to Section XI, GRI 3 is consulted to
determine which portions of the garment are to be considered in
applying Subheading Note 2(A).
GRI 3 states, in pertinent part:
When by application of Rule 2(b) [goods of more than
one material or substance] or for any other reason,
goods are, prima facie, classifiable under two or more
headings, classification shall be effected as follows:
* * *
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(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets for retail sale, which cannot
be classified by reference to 3(a) [which requires
that goods be classified, if possible, under the
more specific of the competing provisions], shall
be classified as if they consisted of the material
or component which gives them their essential
character, insofar as this criterion is
applicable.
The factors which determine essential character of an
article will vary from case to case. It may be the nature of the
materials or the components, its bulk, quantity, weight, value,
or the role a material plays in relation to the use of the goods.
In general, essential character has been construed to mean the
attribute which strongly marks or serves to distinguish what an
article is; that which is indispensable to the structure or
condition of an article.
It is our opinion that the front lace portion imparts the
essential character of the panties. The lace construction
creates in the garment an atmosphere of intimacy and intrigue,
transforming the merchandise from merely underwear to intimate
apparel worthy of the types of merchandise normally sold at
Victoria's Secret (the importer). This metamorphosis greatly
increases the value of the garment to the consumer. This, in
addition to the above-described role the lace performs, requires
classification to be based upon the fiber composition of the lace
portion.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 6108.22.0020, textile category 652,
as women's or girls' slips, petticoats, briefs, panties, night-
dresses, pajamas, negligees, bathrobes, dressing gowns and
similar articles, knitted or crocheted, briefs and panties, of
man-made fibers, other, women's. The applicable rate of duty is
16.6 percent ad valorem.
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 agree-
ments which are subject to frequent renegotiations and changes,
to obtain the most current information available, we suggest that
the importer 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.
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Sincerely,
John Durant, Director
Commercial Rulings Division