HQ 085748: 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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       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















                                          -2-

            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)














                                         - 3 -

                 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













                                         - 4 -

            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













                                         - 5 -

            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.












                                         - 6 -

                 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
                                        Commercial Rulings Division











































            6cc: Area Director, New York Seaport
            1cc: CITA
            1cc: Legal Reference Section
            1cc: Phil Robins