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HQ 965069




September 18. 2002

CLA-2 RR:CR:TE 965069 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3070

Robert Gaydo
Customs Consultant
Deringer Logistics Consulting Group
6930 Metroplex Drive
Romulus, Michigan 48174

RE: Request for Reconsideration of New York Ruling Letter (NY) G89802; Classification of Cheerleading Briefs; NY G89802 affirmed

Dear Mr. Gaydo:

This is in reply to a letter, dated May 22, 2001, submitted by your firm, on behalf of Triston Enterprises Corporation, requesting reconsideration of New York Ruling G89802, dated April 11, 2001, (NY G89802) insofar as it concerned classification of a women’s cheerleading brief. While the letter states that a sample was submitted for review, our office did not initially receive a sample of the subject merchandise. In August 2002, at our request, you submitted a sample to aid us in our determination.

FACTS:

The merchandise under consideration is a pair of women’s cheerleading briefs, intended to be worn under a skirt as part of a cheerleading uniform. The garment is constructed from 100 percent nylon knit fabric and has a one inch double plush elasticized waisted band and 3/8 inch elasticized leg openings.

ISSUE:

Are the submitted garments classifiable as similar to undergarments including briefs and panties under heading 6108, HTSUSA, or as other knitted or crocheted garments, in heading 6114, HTSUS?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The two headings at issue in regard to the classification of the subject merchandise are heading 6108, HTSUSA, which provides for, among other things, women’s or girl’s briefs or panties and heading 6114, HTSUSA, which provides for other knitted or crocheted garments.

HEADING 6108

Heading 6108, HTSUSA, provides for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.”

When interpreting and implementing the HTSUS, the Explanatory Notes (EN) of the Harmonized Commodity Description and Coding System may be utilized. The EN, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The EN for heading 6108 state that the heading covers two separate categories of knitted or crocheted clothing for women or girls, namely inter alia slips, briefs, panties, and similar articles (underclothing) and nightdresses, pyjamas, negligees, bathrobes, dressing gowns and similar articles. Generally, most of the items in the heading are not designed for public display or are clothing items only worn in the presence of family or intimates.

The Informed Compliance Publication, “Apparel Terminology Under the HTSUS,” November 2000, defines underwear as ‘‘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.” The subject merchandise, although worn under other garments, is significantly distinguishable from underwear in that it is specifically designed to be exposed to view when the wearer is dressed for appearance in public. The cheerleading brief has been designed with a one inch double plush waistband to ensure that it will stay in place during athletic activities such as back flips and hand stands. In addition, the elasticized leg openings and full cut are designed to keep the garment in place and not expose parts of the body that would typically be covered in public. The purpose of the cheerleading brief is so that when the cheerleader is engaged in rigorous routines such as high kicks and flips, the public is not seeing the cheerleader’s underwear but rather the brief which is similar to the bottom part of a gymnast’s leotard.

In the letter, of May 22, 2001, it is asserted that there have been two recent rulings concerning identical merchandise, NY G88527, dated April 4, 2001, and NY G87991, dated March 21, 2001, in which the merchandise was classified in heading 6108, HTSUSA. Neither of those rulings, however, indicates that the briefs/panties at issue were cheerleading briefs. Without a sample of the specific merchandise addressed in those rulings, we are unable to conclude that the panties classified were cheerleading briefs as opposed to underwear.

In the letter, furthermore, reliance is placed on International Home Textile, Inc. v. United States, Slip. Op. 97-31 (March 18, 1997), in which the court ruled a shirt, trousers and shorts were properly classified as a shirt, trousers and shorts, specifically in HTSUS subheadings 6105.10.00 (knit cotton shirts) and 6103.42.10 (knit cotton shorts and trousers) even if they have a “loungewear use.” The argument is made that the like the shorts and trousers in International Home Textile, Inc. the cheerleading briefs at issue should be classified as briefs even if they incidentally are used for wear in public settings. In International Home Textiles, Inc. v. United States, Slip. Op. 01-100 (August 10, 2001), the court relied on an examination of the advertising and marketing of the products at issue in reaching the conclusion that the garments were not marketed as sleepwear. With respect to the subject merchandise, no advertising or marketing information has been provided. In addition, the hangtags and labels have not been provided. An internet search reveals that almost identical merchandise is sold by several companies selling cheerleading/athletic products as opposed to undergarments and panties. In particular, discountcheerleading.com, hometeam sportswear.com and Action Dancewear advertise virtually identical briefs for cheerleaders. Like the subject merchandise, the items are described as having a one inch double plush waistband and 3/8 inch elasticized leg bands. They are also 100 percent nylon. The briefs are featured in several different solid colors to match the differing cheerleading uniforms. In addition to the fact that the cheerleading brief is not sold in the undergarment department of stores, the knit fabric of the garment, its full cut and double plush waistband are all features that distinguish the subject merchandise from underwear. Accordingly, we do not find it appropriate to classify the subject merchandise in heading 6108, HTSUSA.

HEADING 6114

Having precluded classification under heading 6108, we must determine whether the cheerleading brief is properly classifiable under heading 6114, HTSUSA. Heading 6114, HTSUSA, provides for “Other garments, knitted, or crocheted.”

The EN for heading 6114 describe the scope of the heading as follows, in pertinent part:

This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.

This heading includes inter alia:

(5) Special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing, clothing, jockeys’ silks, ballet skirts, leotards).

An examination of the headings in Chapter 61, HTSUSA, reveals that the subject merchandise is not more specifically provided for in any other heading of the chapter. Accordingly, the subject merchandise is properly classifiable in subheading 6114.30.3070, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Other: Other: women’s or girls’.”

Classification of the cheerleading brief in heading 6114, HTSUSA, is consistent with the classification of tennis panties in heading 6114, HTSUSA. See NY C81020, dated November 7, 1997. We note that in at least one ruling cheerleading boy cut brief/shorts composed of 100 percent nylon fabric were classified in heading 6104, HTSUSA. See NY G88766, dated April 25, 2001. In that ruling, however, the merchandise at issue was specifically described as being shorts as opposed to briefs or panties as in the instant case. [Emphasis added].

We also note that in NY 869725, dated January 8, 1992 substantially similar merchandise was classified under heading 6108, HTSUSA. Appropriate steps are currently being taken to ascertain if revocation of that ruling is necessary.

HOLDING:

NY G89802 is affirmed. The cheerleading briefs, composed of 100 percent nylon knit fabric, are classifiable in subheading 6114.30.3070, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Other: Other: Women’s or girls’.” The general column one rate of duty is 15.1 percent ad valorem. The textile quota category applicable to this provision is 659.

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 renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status 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 applicability of any import restraints or requirements.

Sincerely,

Myles B. Harmon

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