CLA-2 CO:R:C:T 952266 SK
Tommy Lai
Second Secretary
Hong Kong Economic Office
British Embassy
1233 20th Street, N.W. suite 504
Washington, D.C. 20036
RE: Classification of two styles of women's cotton, nylon and
spandex knit undergarments; undershirt; tank top; heading
6109, HTSUSA; not supportive enough to be a bra under heading
6212, HTSUSA.
Dear Mr. Lai:
This is in response to your letter of July 15, 1992,
requesting, on behalf of the importer, Mast Industries (Far East)
Inc., a binding ruling classification for two styles of women's
knit undergarments. Two samples were submitted to this office
for examination.
FACTS:
Two styles were submitted for classification. Both styles,
referenced VSD 017 and VSD 034, are identical except for their
color and the pattern of raschel used. VSD 017 has a floral
pattern and VSD 034 is solid white. Both tops have V-shaped
front necklines and 2-1/4 inch wide elastic bottom bands made of
raschel lace. The lace portion is made from 83 percent nylon and
17 percent spandex. The other knit fabric is 90 percent cotton
and 10 percent spandex. The straps on these garments are 1/4
inch wide and are non-adjustable.
ISSUE;
Whether the subject merchandise is classifiable as women's
undergarments under heading 6109, HTSUSA, or as brassieres under
heading 6212, HTSUSA?
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LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI), 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.
The threshold question is which component of the garments at
issue controls classification: the bust area which is comprised
of 90 percent cotton or the man-made fiber raschel? GRI 3(b)
provides the relevant analysis when an article is prima facie
classifiable under two or more subheadings in the nomenclature:
Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets for retail sale shall be classified
as if they consisted of the material or component which
gives them their essential character.
Explanatory Note VIII to GRI 3(b) states:
The factor which determines essential character will
vary as between different kinds of goods. It may, for
example, be determined by the nature of the material
or component, its bulk, quantity, weight or value, or
by the role of a constituent material in relation to
the use of the goods.
In the instant case, we are of the opinion that the raschel
imparts the essential character to the garments at issue. The
raschel lace not only covers a large portion of the garments'
surface area, it also gives the garments an extremely delicate,
feminine look which very well may provide the motivating impetus
for the purchase of these garments. Accordingly, the subject
merchandise will be classified as garments comprised of man-made
fibers.
The next issue is whether the garments at issue are
classifiable as women's undershirts under heading 6109, HTSUSA,
or as brassieres under heading 6212, HTSUSA?
Heading 6109 provides for knitted T-shirts, singlets, tank
tops and similar garments. The Explanatory Notes to heading
61.09, HTSUSA, include "singlets and other vests" among the types
of garments classifiable within this section of the nomenclature.
We note that the word "vest" is synonymous with "underwear" and
is a term more commonly used in the British vernacular. The
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garments at issue are similar to undershirts in that they are
designed to be worn under outerwear, on the upper portion of the
body. Thus, heading 6109, HTSUSA, by its terms, encompasses
these articles.
Heading 6212, HTSUSA, provides for brassieres and other body
supporting garments. 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."
We recognize that although these garments resemble bras in
appearance, and that the undergarment industry has undergone
tremendous change in the last few years which has resulted in
many new, non-traditionally styled brassieres, the basic
prerequisites for classification as a brassiere have not changed:
brassieres must be designed to be body-supporting garments. That
is the purpose for which they exist.
The articles at issue are bra-like in appearance, but do not
possess any support features which would render them classifiable
as brassieres. The straps are non-adjustable, the fabric used in
the cups is too loose to be supportive, and there are none of the
traditional characteristics of brassieres present such as
underwires, hook and eye closures, stays, etc... . The cups do
not hold the bust firmly in place, nor are they molded or fitted
except to the extent that there is shirring underneath each cup.
As these garments do not provide body support, classification
under heading 6212, HTSUSA, is precluded.
HOLDING:
Style VSD 017 and VSD 034 are classifiable under subheading
6109.90.1090, HTSUSA, which provides for women's or girls' T-
shirts, singlets, tank tops and similar garments, knitted or
crocheted, of man-made materials, dutiable at a rate of 34
percent ad valorem. The textile quota category is 639.
The designated textile and apparel categories 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 the importer 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.
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Due to the nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint
(quota/visa) categories, the importer should contact his local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division