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HQ 086389


February 9, 1990

CLA-2 CO:R:C:G 086389 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.52.0010

Ms. Joan L. Peterson
Chief, National Import Specialist Branch 3 New York Seaport
U.S. Customs Service
New York Region
Suite 716
6 World Trade Center
New York, NY 10048-0945

RE: DD 848047 affirmed. Skirts with plain narrow elastic waistband are not slips where it is clear the garments are not intended to be worn under other clothing. Textile Guidelines; underwear

Dear Ms. Peterson:

This is in reply to your memorandum CLA-2-61:S:N:N3I-359-21, 848047, of January 23, 1990, requesting reconsideration of DD 848047 of December 29, 1989.

FACTS:

The merchandise at issue consists of two styles of women's garments, produced in Hong Kong, numbered ST-002 and ST-003. Both samples are constructed of 100% knitted fabric. The garments are identical but for their incorporation of different design motifs. The fabric surrounds both legs in a single hemmed tube, reaches to approximately mid-thigh, and contains an elasticized waistband.

In DD 848047, the Area Director, J.F.K. Airport, classified these garments under subheading 6104.52.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as women's skirts. It is your opinion that, because of the plain, narrow elastic waistband, classification as slips would be more ap propriate.

ISSUE:

Whether the garments are considered slips or skirts under the
HTSUSA?
LAW AND ANALYSIS:

Heading 6104, HTSUSA, provides for, inter alia, women's skirts. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. The EN to this heading excludes from classification therein "petticoats and slips of heading 61.08." If the instant merchan dise can be considered slips, therefore, classification in heading
6104 was incorrect.

Your office has recognized that elastic strips of the type which encompass the waistbands of the instant garments are "not normally found on outerwear garments but is usually confined to underclothing." Emphasis added. Notwithstanding this assertion, this office has noted many instances where garments which are clearly skirts embrace this design feature. It is our opinion, therefore, that the presence of a simple elastic waistband is insufficient to transform a skirt into a slip.

The Textile Guidelines, 53 Fed. Reg. 52563 (Dec. 28, 1988), provide:

Category designation: Underwear

The term "underwear" refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors. Whether or not a garment is worn next to the body of the wearer is not a determinant; * * *

It is clear that the instant garments are not meant to be worn under other garments. In our opinion, both the dark colors of ST- 003 and the intricate designs of ST-002 manifest an incontrover tible intent that the apparel not be worn under other clothing. The opinion drafted in DD 848047, therefore, was correct.

HOLDING:

As a result of the foregoing, the instant merchandise remains classified under subheading 6104.52.0010, HTSUSA, textile category 342, as women's or girl's suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), skirts and divided skirts, of cotton, women's. The applicable rate of duty is 8.8 percent ad valorem.

Pursuant to 19 C.F.R. 177, DD 848047 of December 29, 1989, is AFFIRMED.

Sincerely,

John Durant, Director
Commercial Rulings Division

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