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HQ 084767

September 18, 1989

CLA-2 CO:R:C:G 084767 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.22.0020

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

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