CLA-2 CO:R:C:T 950685 SK
Donna L. Shira
Sharretts Paley Carter & Blauvelt, P.C.
67 Broad Street
New York, N.Y. 10004
RE: Classification of brassieres; EN to heading 6212 include all
kinds of bras; garments intended to be worn as outerwear are
not precluded from heading 6212; bras may be worn as
outerwear; country of origin is Belgium where knitting,
cutting and sewing takes place; 19 CFR 12.130; bead
applique not substantial transformation
Dear Ms. Shira:
This is in response to your letter of October 31, 1991, on
behalf of your client, Donna Karan New York, requesting the
country of origin and textile classification for two garments.
Two samples were submitted for our examination and will be
returned to you under separate cover.
FACTS:
Two different styles were submitted for classification:
Style 420046A is an underwire bra constructed from 85% nylon
and 15% spandex raschel knit lace-like material. The garment has
underwire cups and features four plastic stays, adjustable
shoulder straps and four double metal hook and eye closures at
the back. Plastic sequins and beads are embroidered to the outer
surface but do not obscure the underlying fabric. The article is
designated a size 34 B.
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Style 520156A is referred to in your submission as a
bustier. The garment is also constructed from 85% nylon and 15%
spandex raschel knit lace-like material. This garment has
underwire cups, adjustable shoulder straps, four plastic stays
and six double metal hook and eye back closures. The garment
extends 3-3/4 inches below the bottom of the underwire cups.
Imitation pearls and rhinestones are sewn to the outer surface,
but like the other garment, do not obscure the fabric.
The article is designated a size Medium.
ISSUE:
Are these articles classifiable as outerwear or brassieres
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA)?
What is the country of origin of these articles?
LAW AND ANALYSIS:
Classification
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes. Where goods cannot be
classified solely on the basis of GRI 1, and if the heading and
legal notes do not otherwise require, the remaining GRI's may be
applied in order of their appearance.
There are two headings which potentially govern
classification of the articles at issue: heading 6212, HTSUSA,
which provides for brassieres and certain body support garments
and heading 6114, HTSUSA, which is a residual category and covers
garments not specifically included in other headings.
You request classification of the articles at issue under
the latter heading and note that "because [the submitted samples]
are designed for use as outerwear, they can no longer be
classified as brassieres". The validity of your assertion
depends on whether the submitted articles are excluded from
classification as brassieres because they are intended to be seen
when worn; this determination is made by examining the
structural characteristics of the articles as well as their role
in contemporary fashion.
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You cite two previous Customs rulings, District Decision
(DD) 858026, dated December 6, 1990, and New York Ruling Letter
(NYRL) 860500, dated March 1, 1991, which you claim classified
articles similar to those at issue as "other garments" under
heading 6211, HTSUSA. In both cases, the articles classified
were substantially different than the merchandise presently under
review. In the first ruling, the garment at issue was a 100%
cotton bandeau top. It did not provide the support functions of
a brassiere and it is clear by the use of opaque, woven fabric
and the flared waist that this article was outerwear. NYRL
860500 classified two garments: a 100% woven silk garment and a
100% woven cotton garment. Although both had underwires, and one
style had adjustable shoulder straps, neither garment had the
adjustable closures found on bras nor did the articles possess
any additional features which would indicate that they were
designed to be body supporting garments.
Heading 6212, HTSUSA, provides for brassieres, girdles,
corsets, braces, suspenders, garters and similar articles and
parts thereof, whether or not knitted or crocheted. Our initial
inquiry is whether the submitted articles are properly
classifiable as brassieres.
There is no doubt that the garments possess all of the
structural features normally associated with brassieres: distinct
cups, underwires, stays, support fabric, double hook and eye back
closures. We note, however, that although you refer to Style
520156A in your submission as a "bustier", that is a misnomer.
Bustiers are defined in the Essential Terms of Fashion, by
Charlotte Calasibetta, as a "one-piece support garment which is
combination brassiere and waist cincher, and comes to a few
inches below the waist or to the hips". Style 520156A only
extends 3-3/4 inches below the underwire cups and we are of the
opinion that this article is a long line brassiere rather than a
bustier.
The Fashion Dictionary, by Mary Brooks Picken, 1973, defines
"brassiere" as "a close-fitting undergarment shaped to support
the bust". Similarly, Webster's New Collegiate Dictionary, 1977,
defines "brassiere" as "a women's close-fitting undergarment with
cups for bust support". It is important to note that both
definitions use the noun "undergarment" as a synonym for
brassiere. Traditionally, this indicated the garment was one
worn under outerwear, not as outerwear. In the instant case, the
articles have been decorated with beads, sequins, rhinestones and
pearls to such an extent that it is undeniably clear that these
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articles are intended to be worn as outerwear. An article meant
to be worn as outerwear is, by definition, seemingly in direct
contradiction with the term "undergarment".
The undergarment industry has undergone tremendous change in
the last few years as to what is currently acceptable as
outerwear. Customs recognizes that fashion trends may dictate
how certain garments are being worn and that bras worn as
outerwear are a relatively new fashion phenomenon. When most
dictionaries defined brassieres as "undergarments", the accepted
fashion of the day mandated that brassieres be hidden from view
when worn. As is readily apparent from what is currently in
vogue, that rule no longer holds true. A brassiere does not have
to be worn as an undergarment; it need only possess certain
requisite body supporting functions.
This office made several inquiries to well-known lingerie
and outerwear manufacturers to get the fashion industry's current
definition of "brassiere". Olga Company, a manufacturer of
lingerie, asserted that it is acceptable these days to wear bras
as outerwear. They recognize this trend by manufacturing velvet
bras that may be worn alone underneath a blazer or sheer blouse.
The end result is that these bras, which are made by a
traditional maker of lingerie and sold in lingerie departments,
are intended to be seen when worn. Another manufacturer we
contacted, Calvin Klein, makes both lingerie and outerwear. They
too believe that the acceptable role of brassieres for use as
outerwear has greatly expanded over the past several years. The
Calvin Klein representative stated that although articles such as
the subject merchandise may be worn as outerwear, they are
functionally still brassieres. All articles incorporating
features traditionally associated with brassieres (i.e., stays,
underwire cups) are made in engineered foundation factories.
These articles are constructed in the same manner as more
traditionally designed bras that are not intended to be
displayed when worn. Both types of garments are brassieres
providing equal body supporting functions; the only difference is
that it is now acceptable to let brassieres that have been
embellished in some manner show under outerwear or even be worn
by themselves.
Both Style 420046A and 520156A possess features designed to
provide body support. Without ornamentation, these articles are
undoubtedly classifiable as brassieres. With ornamentation,
these articles are still brassieres, but current fashions dictate
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that it is now acceptable for these articles to be seen when
worn. Note that Customs distinguishes the garments at issue
from those articles which are designed as outerwear but also
provide some body support (e.g., sundresses with built-in
underwires and stays in the bodice).
The Explanatory Notes (EN) to heading 6212, HTSUSA, state
that this provision includes "brassieres of all kinds". The
submitted articles are brassieres and, as such, are properly
classifiable under heading 6212 of the Nomenclature.
Country of Origin
Section 12.130 of the Customs Regulations (19 CFR 12.130) is
applicable to the merchandise at issue. Section 12.130(b) of the
Customs Regulations provides that a textile product that is
processed in more than one country or territory shall be a
product of that country or territory where it last underwent a
substantial transformation. A textile product will be considered
to have undergone a substantial transformation if it has been
transformed by means of substantial manufacturing or processing
operations into a new and different article of commerce.
Section 12.130(d) of the Customs Regulations sets forth
criteria in determining whether a substantial transformation of
a textile product has taken place. This regulation states that
these criteria are not exhaustive; one or any combination of
criteria may be determinative, and additional factors may be
considered.
Section 12.130(d)(1) states that a new and different article
of commerce will usually result from a manufacturing or
processing operation if there is a change in:
(i) Commercial designation or identity;
(ii) Fundamental character;
(iii) Commercial use.
Section 12.130(d)(2) of the Customs Regulations states that
in determining whether merchandise has been subjected to
substantial manufacturing or processing operations, the following
will be considered:
(i) The physical change in the material or article as a
result of the manufacturing or processing operations
in each foreign territory or country, or insular
possession of the United States;
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(ii) The time involved in the manufacturing or processing
operations in each foreign territory or country, or
insular possession of the United States;
(iii) The complexity of the manufacturing or processing
operations in each foreign territory or country,
or insular possession of the United States;
(iv) The level or degree of skill and/or technology
required in the manufacturing or processing
operations in each foreign territory or country,
or insular possession of the United States;
(v) The value added to the article or material in each
foreign territory or country, or insular possession of
the United States, compared to its value when imported
into the United States.
Section 12.130(e)(1) provides that an article or material
usually will be a product of a particular foreign territory or
country, or insular possession of the United States, when, prior
to importation into the United States, it has undergone in that
foreign territory or country or insular possession, any of the
following:
(iii) Weaving, knitting or otherwise forming fabric;
(iv) Cutting of fabric into parts and the assembly of
those parts into the completed article.
It is clear that the sewing on of the beads, rhinestones and
pearls in China does not produce a new and different article of
commerce; there has been no change in commercial identity,
character or use of the articles other than to ornament these
articles so that they may be seen when worn.
The garments at issue are knit, cut, sewn and the stays and
underwires are inserted in Belgium. Pursuant to Section
12.130(e)(1), the bras are therefore considered a product of
Belgium barring any persuasive evidence to the contrary. In your
submission you provide a breakdown of the cost and time involved
in both the assembly work and the applique work. The production
and assembly in Belgium costs approximately $15 for Style 420046A
and $17.90 for Style 520156A. The time required is 25 minutes
and 30 minutes respectively. The applique work in China costs
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approximately $9.21 for Style 420046A and $12.97 for Style
520156A. The time required for this process is 4 hours and 6
hours respectively. While it is apparent that the time involved
in sewing on the beads and pearls is significantly longer than
the manufacturing process that takes place in Belgium, this is
countered by the fact that the articles are knit, cut and sewn in
Belgium.
Furthermore, Customs has issued several rulings holding that
beading and the ornamentation of fabric and garments are not
considered enough to qualify as substantial transformation as
that term is defined in Section 12.130 of the Customs
Regulations cited supra. See HRL's 088442 (4/25/91); 088550
(5/29/91); 081936 (8/18/88).
HOLDING:
Both Style 420046A and Style 520156A are classifiable under
subheading 6212.10.1020, HTSUSA, dutiable at a rate of 32 percent
ad valorem. The applicable textile category is 649.
The country of origin of the brassieres is Belgium.
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 that your client 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 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, your client should contact its
local Customs office prior to importing the merchandise to
determine the current applicability of any import restraints or
requirements.
The holding set forth above applies only to the specific
factul situation and merchandise identified in the ruling
request. This position is clearly set forth in Customs
Regulations 19 CFR 177.9(b)(1), which states that a ruling letter
is issued on the assumption that all information furnished in
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connection with the ruling request and incorporated therein,
either directly, by reference, or by implication, is accurate and
complete in every material respect. Should it be subsequently
determined that the information furnished is not complete and
does not comply with 19 CFR 177.9(b)(1), the ruling will be
subject to modification or revocation. In the event that there
is a change in the facts previously firnished, the country of
origin determination may be affected. In such case, it is
recommended that a new ruling request be submitted in accordance
with section 177.2, Customs Regulations (19 CFR 177.2).
Sincerely,
John Durant, Director
Commercial Rulings Division