CLA-2 CO:R:C:T 950741 HP
Mr. Richard M. Wortman
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49TH Street
New York, NY 10017
RE: Addition of some body supporting features to a teddy does
not transform that underwear into a body supporting garment of
heading 6210. Stays; cups; adjustable straps; spandex; bra
Dear Mr. Wortman:
This is in reply to your letter of November 20, 1991. That
letter concerned the tariff classification, under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), of mold-
cup teddy, produced in Hong Kong. Please reference your client
Mast Industries (Far East) Ltd., 90-289-5(323)I.
FACTS:
The merchandise at issue consists of an underwear teddy,
Style VSI-603, constructed from 90% nylon and 10% spandex raschel
lace-like openwork fabric. The garment features removable,
adjustable shoulder straps, a snap cotton crotch, and a nine inch
plastic stay in each side seam. The teddy also has soft molded
cups, similar to those found in bathing suits.
ISSUE:
Whether the instant garment is considered "body-supporting"
under the HTSUSA?
LAW AND ANALYSIS:
Heading 6212, HTSUSA, provides for, inter alia, brassieres,
girdles, corsets, and similar articles, whether or not knitted or
crocheted. The Explanatory Notes (EN) to the HTSUSA constitute
the official interpretation of the tariff at the international
level. While not legally binding, they do represent the
considered views of classification experts of the Harmonized
System Committee. It has therefore been the practice of the
Customs Service to follow, whenever possible, the terms of the
Explanatory Notes when interpreting the HTSUSA. The EN to this
heading states:
This heading covers articles of a kind
designed for wear as body-supporting garments
..., and parts thereof. These articles may
be made of any textile material including
knitted or crocheted fabrics (whether or not
elastic).
The EN do not, however, aid us in defining "body-supporting."
The Customs Service periodically issues the Guidelines for
the Reporting of Imported Products in Various Textile and Apparel
Categories. The Guidelines, most recently published at 53 Fed.
Reg. 52563 (Dec. 28, 1988), CIE 13/88 (Nov. 23, 1988), note that
since certain types of garments are closely related in use, the
Guidelines are to be used as an aid in determining the commercial
designation and, hence, the classification of an article. Used
as such, they represent the present position of the Customs
Service.
The Textile Guidelines, supra, at 22, state that "body-
supporting" garments do not include "garments containing Lycra
spandex, or similar elastic-type yarns, the primary purpose of
which is to cause the garment to fit snugly under outer
garments." We can therefore conclude that "body-supporting" must
be the garment's primary, not ancillary. function for the garment
to be classifiable in heading 6212, HTSUSA.
It is our opinion that the instant merchandise does not meet
this requirement. Even assuming, arguendo, that the molded cups
provide support similar to conventional brassieres, the mere
addition of these cups to a garment prima facie classifiable in a
non-body-supporting garment provision does not transform that
garment into one properly classifiable in heading 6212, HTSUSA.
Indeed, taking your argument to its logical extreme, the
insertion of identical cups and plastic side stays in a dress
would transform that dress into a "body-supporting" garment. As
you noted in your brief, the support and shape functions of a
conventional bra are imparted by the interaction of the cups,
bands, frames and back panels. See Gelmart Ind. v. United
States, 11 CIT 70, 655 F. Supp. 482 (1987). The components of
the lace-like teddy at issue do not work together to provide
support similar to those articles enumerated in heading 6212,
HTSUSA.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 6108.92.0015, HTSUSA, textile
category 652, as women's or girls' slips, petticoats, briefs,
panties, nightdresses, pajamas, negligees, bathrobes, dressing
gowns and similar articles, knitted or crocheted, other, of man-
made fibers, underwear, other, women's. The applicable rate of
duty is 17 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
agreements which are subject to frequent negotiations and
changes, to obtain the most current information available, we
suggest that you 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 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 importing the merchandise to determine
the current status of any import restraints or requirements.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division