HQ 0085748 - 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 - United States International Trade Commision Rulings

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HQ 085748

December 1, 1989

CLA-2 CO:R:C:G 085748 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.63.2060, 6104.53.2020

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
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)

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
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
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.

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

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