CLA 2 RR:CR:TE 963414 jb
Mr. John Imbroguglio
Nordstrom, Inc.
A/P Import Office
1617 Sixth Avenue, Suite No. 1000
Seattle, Washington, 98101-1742
RE: Modification of NY D84994; classification of women’s knit garment
Dear Mr. Imbroguglio:
On December 16, 1998, our New York office issued to you New York Ruling Letter (NY) D84994, regarding the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), for certain women’s knit lower body garments. This letter is to inform you that although the classification determinations rendered in that ruling are correct as pertains to styles 4120 and 3220, the classification of style 4132 is in error. Accordingly, the classification of style 4132 is changed pursuant to the analysis which follows below.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY D84994 was published on October 13, 1999, in the Customs Bulletin, Volume 33 , Number 41. No comments were received.
FACTS:
The merchandise at issue, referenced style number 4132, consists of a lady’s knitted lower body garment which is composed of 90 percent cotton and 10 percent spandex fabric. The garment features a four panel construction and measures 12-1/2 inches in length, with each leg opening measuring 9-1/4 inches. The shorts are a pull on style with a one inch wide covered elasticized waistband and hemmed leg openings.
NY D84994, determined that the classification of style number 4132 was in heading 6114, HTSUS, as an “other garment.” Upon review of that merchandise it is our determination that the subject merchandise is properly classified in heading 6104, HTSUS, as women’s outerwear shorts.
ISSUE:
What is the proper classification for the subject merchandise?
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.
There are three plausible tariff classification provisions for the subject merchandise, that is, heading 6108, HTSUS, which provides for, among other things, women’s underpants, heading 6114, which provides for, among other things, other women’s knit garments, and heading 6104, HTSUS, which provides for, among other things, women’s shorts. In classifying the subject merchandise, which could be considered to have features attributable to one of the above stated types of garments, 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. In the case of the subject garment no marketing information was submitted to corroborate the claim that this garment is intended to be worn as underwear. As such, we look to the garment itself as the best evidence for characteristic features indicative of the proper classification.
The submitted garment provides sufficient coverage of the lower torso extending down to the legs, and the weight of the fabric is such that it is adequate for an outerwear classification. Furthermore, unlike women’s underwear garments, which traditionally feature a gusset and cotton lining in the crotch, these features are absent in the subject garment. The center seam and inseam are also 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. These features would render the garment extremely uncomfortable and ill-suited for use as underwear. See, e.g., HQ 951205, dated June 16, 1992, and HQ 962356, published in the Customs Bulletin, dated September 22, 1999, Vol. 33, Number 38.
Heading 6104 covers, inter alia, shorts. This provision is an eo nomine provision with no legal note defining or limiting the scope of the term shorts. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 6104, HTSUS, by reference to the previous heading, state that shorts are trousers which do not cover the knee, and that trousers envelop each leg separately. We interpret this guidance to encompass any amount of leg coverage as long as it ends above the knee as sufficient to specifically describe a garment as shorts. As such, it is our determination that the subject garment is properly classified in heading 6104, HTSUS.
Heading 6114, HTSUS, provides for knit garments which are not more specifically provided for in previous headings. As we have already determined that the subject garment is more specifically provided for in heading 6104, HTSUS, there is no need to discuss this classification.
Accordingly, the determination in NY D84994 is modified pursuant to the analysis set forth in this ruling letter.
HOLDING:
The subject lower body garment is classified in subheading 6104.62.2030, which provides for women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: trousers, bib and brace overalls, breeches and shorts: of cotton: other: shorts: women’s. The applicable column one general rate of duty is 15.8 percent ad valorem and the textile category is 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 you 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, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
NY D84994 dated December 16, 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