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