CLA-2 RR:TC:TE 959284 jb
TARIFF NO: 6212.90.0030; 6212.20.0020
Port Director
U.S. Customs Service
Second and Chestnut Sts.
Philadelphia, PA 19106
RE: Decision on Application for Further Review of Protest No.
1101-96-100342; women's body supporting garments
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of True Form Intimate Apparel,
Division of Maidenform, Inc., on May 3, 1996, against your
decision regarding the classification of certain women's body
supporting garments. All entries were liquidated on February 9,
1996, and February 16, 1996. Of the eleven garment styles at
issue, only one sample, style number 3023, was provided to this
office for examination.
FACTS:
The submitted sample, referenced style number 3023, is a
short leg foundation garment made of 80 percent nylon and 20
percent spandex. The garment has an elasticized waist and leg
openings, a two-ply panel which extends around the entire garment
and three rows of vertical stitching on the front and rear. This
sample is just one of eleven styles covered by this protest.
Style numbers 2519, 2539, 3023, 5856, 5858, and 6856 were the
subject of Pre-Classification Ruling (PC) 882271, dated February
11, 1993. Style numbers 16856, 2258, 6818, 12509 and 8803, were
the subject of PC A81458, dated March 28, 1996.
The subject eleven styles can be divided into three types of
garments which the Protestant refers to as "Body Briefers" (also
known as corselettes), which are a combination garment consisting
of a girdle and brassiere, and cover style numbers 2539, 5856,
5858, 6856, and 16856; "Multi-functional" garments (classified by
Customs as girdles) covering style numbers 2519, 3023, 2258,
6818, and 12509; and "Merry Widows", which are a combination
article consisting of a corset and long-line brassiere, style
number 8803.
The Protestant claims these garments were improperly
classified by Customs in the following manner: the "Body
Briefers" were classified in subheading 6212.30, Harmonized
Tariff Schedule of the United States (HTSUS), which provides for
corsets; the "Multi-functional garments" were classified in
subheading 6212.20, HTSUS, which provides for girdles and panty
girdles; and the "Merry Widows" were classified in subheading
6212.10, HTSUS, which provides for brassieres. Accordingly,
classification for all of the above mentioned garments is sought
in subheading 6212.90, HTSUS, which provides for other body
supporting garments, because of what the Protestant argues is the
multipurpose nature of the garments.
ISSUE:
What is the proper classification of the merchandise at
issue?
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). GRI 1 requires
that classification 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, the remaining
GRI will be applied, in the order of their appearance.
Heading 6212, HTSUSA, provides for, "brassieres, girdles,
corsets, braces, suspenders, garters and similar articles and
parts thereof, whether or not knitted or crocheted". Within this
heading are four subheadings which provide for the following
types of garments: brassieres at subheading 6212.10, HTSUS;
girdles and panty girdles at subheading 6212.20, HTSUS; corsets
at subheading 6212.30, HTSUS; and other body supporting garments
at subheading 6212.90, HTSUS. The Explanatory Notes to the
Harmonized Commodity Description and Coding System (EN) to
heading 6212, HTSUS, state, in pertinent part:
This heading covers articles of a kind designed for
wear as body-supporting garments or as supports for certain
other articles of apparel, and parts thereof. These
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.
(2) Girdles and panty-girdles.
(3) Corselettes (combinations of girdles or panty-girdles
and brassieres).
(4) Corsets and corset-belts. These are usually reinforced
with flexible metallic, whalebone
or plastic stays, and are generally fastened by lacing or by
hooks.
* * *
All of the above articles may be furnished with trimmings of
various kinds (ribbons, lace, etc.), may incorporate
fittings and accessories or non-textile materials (e.g.,
metal, rubber, plastics or leather).
* * *
Body Briefers
In order to better comprehend the nature of each of the
three subject types of garments, a review of the lexicographic
sources is necessary. In the case of the body briefers the
following definitions are useful. "Corset" is defined as:
Women's one piece sleeveless, laced garment for shaping the
figure. Generally a heavily boned, rigid garment worn from
1820s to 1930s. Since 1940s made of lighter-weight
elasticized fabrics and called a GIRDLE or FOUNDATION
GARMENT. Fairchild's Dictionary of Fashion, 2d Edition.
Smoothly fitted undergarment extending from or below the
bust down over the hipline; often stiffened by strips of
steel or whalebone, limbered by elastic goring, sometimes
tightened by lacing. Worn by women for support and figure-molding. Originally, made in two pieces laced together at
front and back. Formally called stays; now usually called
corsets. The Fashion Dictionary, by Mary Brooks Picken,
(1973), at 89.
A close-fitting, reinforced undergarment, reaching from the
bust to below the hips, worn by women to support the body or
mold the figure. The Modern Textile and Apparel Dictionary,
4th Edition, by George E. Linton, (1973), at 126.
"Corselette" is defined as:
Under-garment combining girdle or lightly-boned corset and
brassiere. Also called foundation or one-piece corset. The
Fashion Dictionary, by Mary Brooks Picken, (1973), at 89.
Foundation with firm support achieved by boning, power-net
side panels, and front panel of non-stretch nylon taffeta.
Sometimes has an inner belt which hooks separately to help
flatten abdomen. Bra top is often of nylon lace with
marquisette lining with adjustable shoulder straps.
Foundation is fastened by hooks underneath zipper and has 6
garters. Essential Terms of Fashion, by Charlotte Mankey
Calasibetta, (1986), at 64.
..., a one-piece garment combining brassiere and girdle, was
developed in the 1930s and is still worn. 20,000 Years of
Fashion, by Francois Boucher, (1983), at 652.
The Protestant claims that the subject "Body Briefers" or
corselettes are similar to, but not the same as corsets, and thus
cannot be classified as such. In support of this claim reference
is made to the EN to heading 6212, HTSUS, which in providing for
both corsets and corselettes, demonstrate that they are
distinctly different garments. Additionally, it is noted that
the definition of corsets, as provided by the EN to heading 6212,
HTSUS, states that corsets are usually reinforced with flexible
metallic, whalebone, or plastic stays and are generally fastened
by lacing or hooks.
The subject body briefers (style numbers 2539, 5856, 5858,
6856, 16856) do not share the features of corsets as set forth in
the EN to heading 6212, HTSUS. None of these styles feature
either lacing or hooks attached for fastening nor are they
reinforced with any of the kinds of stays mentioned in the EN to
heading 6212, HTSUS. We agree with the Protestant's claim that
these garments perform more than one function because they are
purchased for use as a combination brassiere and girdle garment
and thus do not fit in any of the eo nomine subheading provisions
of heading 6212, HTSUS. We are also aware that a discrepancy
exists between the tariff and the EN for heading 6212, HTSUS, at
the subheading level (6212.30). The tariff provides for corsets
at subheading 6212.30, HTSUS, and the EN to heading 6212, HTSUS,
provide for corselettes at that same subheading level (6212.30).
The Explanatory Notes serve only as guidance in the
classification of garments and as such, are not binding. The
tariff, on the other hand, is binding on the U.S. Customs
Service. As such, although we are aware of this inconsistency,
a statutory change is required to resolve the conflict. This is
a matter for legislative action which cannot be administratively
activated by this agency. Accordingly, until this conflict is
resolved, the proper classification for these garments is at the
"other" level, that is subheading 6212.90, HTSUS.
Multi-functional garments
An understanding of these garments is governed by the
following terms:
"Girdle" is defined as:
Undergarment worn by women and girls, designed to mold lower
torso and sometimes legs; may be flexible two-way stretch or
one-way stretch elastic with non-stretchable fabric panels;
hip-to-ankle-length, with or without garters. Essential
Terms of Fashion, by Charlotte Mankey Calasibetta, (1986),
at 66.
Women's foundation garment replacing corset. More flexible
and lighter than a corset, it does not come above the
waistline. The Modern Textile and Apparel Dictionary, (1973), at 266.
Flexible, light-weight shaped corset, made partly or
entirely of elastic. Worn to confine figure, especially
through hip line. The Fashion Dictionary, by Mary Brooks
Picken, (1973), at 163.
Protestant next claims that the "Multi-functional" garments
(style numbers 2519, 3023, 2258, 6818 and 12509) are improperly
classified as girdles in subheading 6212.20, HTSUS, because these
garments combine a variety of functions, such as holding in the
waist, hips, rear, and thighs, cinching the waist, holding up
stockings and providing for decency and hygiene. It is the
Protestant's belief that these garments are not classifiable in
the eo nomine provision for girdles because they are not girdles
per se. In support of this claim, reference is made to HQ
956668, dated February 28, 1995, which classified a garment known
as a "Merry Widow" in subheading 6212.90, HTSUS. The
determination in HQ 956668 was premised on the fact that the
"Merry-Widow", in addition to performing the function of a long-line bra, also featured attached garters which provided the
additional function of holding up stockings, a function not
attributable to long-line brassieres. The same cannot be said of
the above referenced "multi-functional" garments.
As reflected in the definitions of "girdle" noted above,
there is no limiting language in those definitions which would
preclude any of the "multi-functions" stated by the Protestant
from existing simultaneously. A girdle is commonly understood as
a garment which provides overall support for the lower torso-
this would include the cinching of the waist to enhance the
bosom, holding in hips, rear and thighs, holding up stockings
(when garters are present) and providing for decency and hygiene
when the girdle is also worn in place of panties. As such, the
subject "multi-functional" garments aptly meet the eo nomine
definition for girdles and are so classified. See also, HQ
950650, dated January 27, 1992, which classified a similar
garment, made with a lower percentage of spandex, as a girdle.
Merry Widows
The following terminology is beneficial to this discussion:
"Merry Widow" is defined as:
A 1951 corset manufactured by Warner's and named after the
operetta by Franz Lehar. A pronounced hourglass shape, it
corresponded to the New Look shaping, restraining the waist
and lifting the bust. Infra-Apparel, by Richard Martin and
Harold Koda, (1933), at 47.
A long-line bra, with many stays, usually strapless and
extending below the waist. Popular in the 50's worn under
formals. The Fashion Dictionary, by Mary Brooks Picken,
(1973), at 244.
A corset made by Warner's and named after Lehar's operetta.
Creating an hour-glass shape it had half-cup bust support
and long stocking suspenders. Underwear The Fashion
History, by Alison Carter (1992), at 152.
"Brassiere" or "Bra" or "Long-line bra" are defined as:
Brassiere: Close-fitting undergarment shaped to support
bust. Also called bra, uplift, bandeau. The Fashion
Dictionary, by Mary Brooks Picken, (1973), at 36.
Bra: A shaped undergarment worn by women to mold and support
the breasts. Usually consists of two cups held in place with
straps over the shoulders and elastic in center back. Bra
is shortened form of word brassiere, a garment first popularized
in the early 20th c. Also called bandeau. Essential Terms of
Fashion by Charlotte Mankey Calasibetta, (1986), at 18.
Long-line bra: Bra that fits the bust or rib cage, extends
to waist or below; worn with girdle to eliminate waistline
bulges; sometimes boned and wired to be worn without straps.
Id.
Lastly, Protestant claims that the "Merry Widow" garment
(style number 8803), which extends from the bust to the waist,
and extends slightly below the waist in the front, and features
two-piece underwire cups, several plastic vertical stays,
multiple hook and eye adjustable brassiere or corset-type rear
closure, and detachable garters, was improperly classified as a
brassiere. In support of this claim, reference is again made to
HQ 956668, wherein a virtually identical garment was classified
as an other body supporting garment in subheading 6212.90, HTSUS.
The Merry Widow cannot be classified as a brassiere or long-line
brassiere because the latter lack the appendages attached to the
garment. The presence of the garters on these types of garments
gives them the additional function of holding up stockings- a
function not attributable to brassieres or long-line brassieres.
The "Merry Widow" provides bust support which is a function of a
brassiere, but the additional function of holding up stockings by
the attached garters makes this garment more than a brassiere or
long-line brassiere. As such, we are in agreement with
Protestant's claim that this garment is precluded from
classification in subheading 6212.10, HTSUS, as a brassiere.
It thus follows that the subject three types of garments are
classified as follows: the "Body Briefers" (style numbers 2539,
5856, 5858, 6856, and 16856) and "Merry Widow" (style number
8803) garments were improperly classified in subheadings 6212.30
(corsets) and 6212.10 (brassieres), HTSUS, respectively, and are
properly classified in subheading 6212.90, HTSUS, as "other"
garments. The "Multi-functional" garments (style numbers 2519,
3023, 2258, 6818, and 12509) remain properly classified in
subheading 6212.20, HTSUS, as girdles.
HOLDING:
The protest should be granted in part, as corresponds to the
"Body Briefers", referenced style numbers 2539, 5856, 5858, 6856,
and 16856, and the "Merry-Widow", referenced style number, 8803,
and denied in part, as corresponds to the "Multi-functional"
garments, referenced style numbers 2519, 3023, 2258, 6818, and
12509, and a copy of this ruling should be appended to the CF 19
Notice of Action to satisfy the notice requirement of section
174.30(a) Customs Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days
from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Branch