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HQ 089947


December 3, 1991

CLA-2 CO:R:C:T 089947 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0005

David M. Murphy, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Classification of a woman's knit garment for the lower torso and legs; underwear v. outerwear; 6108, HTSUSA, v. 6104, HTSUSA

Dear Mr. Murphy:

This ruling is in response to your submission of July 1, 1991, on behalf of North American Underwear, regarding the classification of a woman's garment designed to cover the lower torso and legs. A sample garment was received with your submission.

FACTS:

The submitted sample, style J76461-2, is a knit garment designed to cover the lower torso and legs to slightly below the knee. The garment is made of 100 percent cotton rib knit fabric and features an elasticized self-fabric waistband, 2-1/2 inch lace trim at the leg bottoms, a gusset in the crotch, and a tiny ribbon bow on the front center just below the waistband.

The garment will be sold in sizes small (5), medium (6) and large (7) and will bear labels and hangtags which describe the garment as underwear. It is described in your submission as an underwear bottom.

The garment will be imported from Hong Kong and China.

ISSUE:

Is the garment at issue, style J76461-2, classifiable as a women's underwear garment of heading 6108, HTSUSA, or as women's pants of heading 6104, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In Mast Industries v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144 (1986), the court noted, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46, C.A.D. 817 (1963), "the merchandise itself may be strong evidence of use." The court in Mast (at 551) also noted "that most consumers tend to purchase and use a garment in the manner in which it is marketed."

The submitted garment is made of sheer rib knit cotton fabric much like the fabric often used to make men's undershirt singlets. It is a type of fabric often used in underwear garments. Additionally, you indicate in your submission that the sizing of the garment--small, medium, large--follows typical sizing for women's underpants, i.e., five, six, seven.

The garment will be marketed as an underwear garment with hangtags indicating it is intimate apparel. Customs agrees this garment is designed for use as an underwear garment.

This garment meets the definition of the term "drawers"; a term not often used today. Drawers is defined as a "trouser-like undergarment, worn by both men and women." Mary Brooks Pickens, The Fashion Dictionary, at 108. In addition, the garment is similar to garments advertised as thermal wear to be worn under other garments during cold weather. See, J.C. Penney Fall & Winter 1990 Catalog, at 262, 263.

HOLDING:

The subject garment, style J76461-2, is classifiable as a women's undergarment similar to briefs in subheading 6108.91.0005, HTSUSA, textile category 352, dutiable at 9 percent ad valorem.

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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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