CLA-2 CO:R:C:T 951264 SK
Mary V. Brackett
Import/Export Manager
NCC Industries, Inc.
163 Main Street
Cortland, N.Y. 13045
RE: Revocation of HRL 089778 (11/7/91); T-back sports bras with
additional layer of stretch fabric sewn to front panel;
heading 6212, HTSUSA; lexographic sources not absolutely
determinative of classification; bras need not have cups;
bras may be worn as outerwear; HRL 951685 (3/11/92).
Dear Ms. Brackett:
On November 7, 1991, Headquarters Ruling Letter (HRL) 089778
was issued to you in response to your request for a
classification ruling for sports bras under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). Upon review,
that classification is determined to be in error.
FACTS:
At issue are two styles of sports bras, referenced #0100 and
#0840. Both styles are constructed from 46% polyester, 46%
cotton and 8% spandex. The bras feature T-backs, elasticized
capping on the arm holes, scooped necklines and heavy elastic
bands sewn in the bottom hems. An additional panel of stretch
fabric is sewn under the outer front panel and the back panel is
also double-ply.
HRL 089778 classified the subject merchandise as other
garments (women's tops), under heading 6114, HTSUSA. The applied
rate of duty was 30% ad valorem and the applicable textile
category was 639.
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ISSUE:
Whether the articles at issue are properly classifiable as
other garments under heading 6114, HTSUSA, or as brassieres
under heading 6212, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification shall be in accordance with
the terms of the headings and any relative section or chapter
notes.
The articles at issue are commonly and commercially referred
to as "sports bras". Question remains as to whether these
articles are indeed classifiable as brassieres under heading
6212, HTSUSA, inasmuch as they do not possess the features
traditionally associated with brassieres such as separate molded
cups, adjustable straps, hook and eye closures, etc... .
Customs frequently refers to lexicographic sources for
guidance in determining classification. Similarly, Customs will
consider garment definitions as set forth in the Textile Category
Guidelines, CIE 13/88, dated November 23, 1988. We note,
however, that dictionary definitions, particularly with regard to
fashion items, are often limited and sorely dated as it is
impossible to accurately reflect all the latest trends. The
Guidelines tend to be more detailed, but they too are often
limited and/or dated. Moreover, they are not binding on Customs,
but are merely intended to offer guidance when classifying
garments. With this in mind, Customs will examine these sources
for their interpretive value when classifying garments, but will
recognize that classifications based on static, narrow
definitions may result in erroneous and dated conclusions.
Industry trends must be taken into account because they reflect
how a particular garment's role may have expanded, narrowed or
completely changed in the fashion industry. Classification based
on a physical examination of an article, combined with
information as to how this garment is treated in the trade and
commerce of the United States, results in the most accurate
classifications.
The subject merchandise was previously classified in HRL
089778 under heading 6114, HTSUSA, which provides for other
garments (women's tops). This ruling construed the traditional
definitions of brassieres as determinative. See Webster's Third
New International Dictionary, (1986), which defines brassiere
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as "a women's close-fitted undergarment having cups for bust
support... " [emphasis added]. In HRL 089778, Customs ruled that
because the article at issue had no cups, and was not constructed
to "provide support in the manner of brassieres", it was not a
brassiere. This determination was augmented by the fact that the
garments had no adjustable straps, mesh panels, frontal cross
design nor clearly identifiable cups.
The fact that the articles at issue are not designed in the
traditional manner of brassieres does not preclude them from
classification under heading 6212, HTSUSA, which provides for
brassieres, girdles, corsets, braces, suspenders, garters and
similar articles and parts thereof, whether or not knitted or
crocheted. The Explanatory Notes (EN) to heading 6212, HTSUSA,
state:
"This heading covers articles of a kind designed for wear as
body-supporting garments... [T]hese articles may be made
of any textile material including knitted or crocheted
fabrics (whether or not elastic).
The heading includes, inter alia:
(1) Brassieres of all kinds. [emphasis added]
According to the EN, the prerequisites for classification as
a brassiere under heading 6212, HTSUSA, are clear and
unambiguous: the garment must be a type of bra (any type), and
the garment must have been designed to be body-supporting. It
follows that we must first determine whether the articles at
issue are indeed a type of bra and, if so, whether they have
been designed to be body-supporting.
With regard to the first criteria, we recognize that the
garments at issue are commonly and commercially referred to as
"sports bras" in the fashion industry. As to whether the fashion
industry treats sports bras as foundation articles or outerwear,
we note the following statements published in the December, 1990
issue of Body Fashions/Intimate Apparel:
"... despite a sluggish economy that seems to be making
the buyer beware, sportsbras appear to be a remaining
stronghold in the foundations arena."
"The belief that sportsbras are really a necessity to
women's active lives is the reason behind why the foundation
will still be a big seller... ."
"JC Penney is an example of one retailer who has prepared
for the growth of the sports foundation department."
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"... sportbras still belong in the foundation department
where the fit issue can still be addressed."
It is apparent that the trade treats sports bras as foundation
garments, rather than as outerwear.
Moreover, although the sports bras at issue are not designed
in the traditional manner of bras, they are nevertheless designed
to provide body support as evidenced by their physical design:
they have a very snug fit, wide elastic bands that keep the
garment properly in place to prevent it from riding up and
failing to offer support in the proper places, and an additional
panel of stretch fabric sewn to the front of the garment. You
submit that the front panel of the sports bras undergo a hot
molding process for 15 seconds at 425 degrees Fahrenheit which
results in a specific breast cup size which is heat set into the
garment. You also state that NCC Industries, Inc. is now
labeling these garments with cup size information. Although this
is further persuasive evidence that the articles at issue are
indeed body-supporting brassieres, Customs does not require that
body-support garments must have cups, heat molded or otherwise,
to be classifiable as brassieres so long as the articles are
treated as foundation wear in the industry and the requisite
support features are present. The snug fit is an intentional
design feature which serves to hold a women's bust in place
during vigorous activity and it is clearly support-giving.
Likewise the double-layered fabric in front of the garment is
primarily a support feature. The absence of clasps, hook and eye
closures, underwires, stays and even separate cups reduces
chafing and pinching. In every respect the support required of a
bra for purposes of classification under heading 6212, HTSUSA, is
present in the instant merchandise, despite the lack of
traditional features.
As Customs stated in HRL 950685, dated March 11, 1992, this
office recognizes that the undergarment industry has undergone
tremendous change in the last few years. When most dictionaries
defined brassieres as garments to be worn under outerwear,
possessing certain features such as distinct cups, that
definition was mandated by the acceptable fashion morays of the
day. Fashions change, as do the basic designs of garments and
the method and manner in which they are worn. Articles of
apparel are continually updated in an effort to capture new
markets and meet changing needs. In the instant case, sports
bras, designed without cups, clasps, adjustable straps and the
like, are clearly an attempt to meet the support needs of women
who participate in vigorous activities. The bras at issue
deviate from more traditionally styled bras in response to the
huge impact the sports and fitness industries have had on the
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fashion industry. In other words, although "sports bras" are a
relatively recent phenomenon in the foundation area, there is no
bar to their classification as brassieres under heading 6212,
HTSUSA, so long as they possess the requisite body-support
features.
We note that similarly styled garments, often referred to as
"crop tops", will not be classified as brassieres. They may be
styled with similar dimensions, and look very much like the
garments at issue, but a distinction is made by recognizing that
crop tops will not have double fabric panels, nor will they have
heavy elasticized bottom hems. We also note that while crop
tops are intended to be worn as outerwear, and most bras are not,
a garment which is otherwise designed and intended to provide
support in the manner of a bra will not be precluded from
classification as such merely because it will be seen when worn.
Although most sports bras, such as these, will be worn underneath
workout clothes, some individuals may wear them alone with
exercise bottoms. As we recognized in HRL 950685, current
fashion dictates that it is now acceptable to let brassieres show
under outerwear or even be worn alone by themselves.
It is this office's opinion that the sports bras at issue do
possess the requisite support features to warrant classification
as brassieres under heading 6212, HTSUSA.
HOLDING:
The subject merchandise is classifiable under subheading
6212.10.2020, HTSUSA, which provides for, inter alia, brassieres,
whether or not knitted or crocheted: other... of man-made
fibers, dutiable at a rate of 18% ad valorem. The applicable
textile category is 649.
In order to ensure uniformity in Customs' classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), HRL 089778
is revoked to reflect the above classification effective with the
date of this letter. If, after your review, you disagree with
the legal basis for our decision, we invite you to submit any
arguments you may have with respect to this matter. Any
submission you wish to make should be received within 30 days of
the date of this letter.
This revocation is not retroactive. However, HRL 089778
will not be valid for importations of the subject merchandise
arriving in the United States after the date of this notice. We
recognize that pending transactions may be adversely affected
(i.e., merchandise previously ordered and arriving in the United
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States subsequent to this revocation will be classified
accordingly). If it can be shown that you relied on either
ruling to your detriment, you may apply to this office for
relief. However, you should be aware that in some instances
involving import restraints, such relief may require separate
approvals from other agencies.
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 its
local Customs office prior to importing the merchandise to
determine the current applicability of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division