CLA 2 RR:CR:TE 962631 jb
Fiona Chau
Hong Kong Economic and Trade Office
1520 18th Street, N.W.
Washington, D.C. 20036
RE: Classification of women’s knit garment
Dear Ms. Chau:
This is in response to your letter, dated March 3, 1999, on behalf of Nordstrom Inc., regarding a shipment of certain women’s knit lower body garments. A sample was submitted to this office for review and will be returned under separate cover.
FACTS:
The subject merchandise, 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.
New York Ruling Letter (NY) D84994, dated December 16, 1998, determined the classification of several garments, including subject style number 4132. Although you do not dispute the tariff classifications rendered for the other garments, you state that the classification of style number 4132 in heading 6114, Harmonized Tariff Schedule of the United States (HTSUS), as an “other garment” is in error. It is your opinion that the subject merchandise is properly classified in heading 6108, HTSUS, as women’s underpants. You claim that the garment is more appropriately worn under another outer garment and that it is not intended to be exposed to view when the wearer is conventionally dressed for appearance in public.
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, No. 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 will be modified by means of a separate ruling to the recipient of NY D84994 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 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.
Sincerely,
John Durant, Director
Commercial Rulings Division