CLA-2 RR:TC:TE 959353 jb
TARIFF NO: 6212.90.0030; 6212.20.0020
Port Director
U.S. Customs Service
P.O. Box 025280
Miami, Florida 33102-5280
RE: Decision on Application for Further Review of Protest No.
5201-95-100856; 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 December 5, 1995, against your
decision regarding the classification of certain women's body
supporting garments. All entries were liquidated between
September and November, 1995. Of the eleven garment styles at
issue, two samples, style numbers 2503 and 3023, were provided to
this office for examination.
FACTS:
The first sample, referenced style number 2503, is a
foundation garment made of 75 percent nylon and 25 percent
spandex fabric. The garment extends from the waist to mid-thigh
and features a 2-1/2 inch heavily elasticized waistband with four
vertical stays in the front, a two-ply panel which extends around
the entire garment, an additional oval shaped tummy panel and a
two-inch rubberized lace-like trim finish around each leg
opening.
The second 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.
These samples represent two of the eleven styles covered by
this protest. All of the styles covered by this protest, that
is, style numbers 2503, 2509, 2519, 3023, 5858, 7416, 12509,
2258, 12519, 4527 and 6859 were the subject of Pre-Classification
Ruling (PC) 882271, dated February 11, 1993.
The subject styles can be divided into two 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 5858 and 7416; and
"Multi-functional" garments (classified by Customs as girdles)
covering style numbers 2503, 2509, 2519, 3023, 12509, 2258,
12519, 4527 and 6859.
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, and the "Multi-functional garments" were classified in
subheading 6212.20, HTSUS, which provides for girdles and panty
girdles. 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"
(style numbers 5858 and 7416) 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 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 2503, 2509, 2519, 3023, 12509, 2258, 12519, 4527,
and 6859) 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 called 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.
It thus ensues that the subject two types of garments are
classified as follows: the garments referred to as "Body
Briefers" (style numbers 5858 and 7416) were improperly
classified in subheadings 6212.30, HTSUS (corsets) and are
properly classified in subheading 6212.90, HTSUS, as "other"
garments. The "Multi-functional" garments (style numbers 2503,
2509, 2519 and 3023, 12509, 2258, 12519, 4527 and 6859) 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 5858 and 7416, and
denied in part, as corresponds to the "Multi-functional"
garments, referenced style numbers 2503, 2509, 2519, 3023, 12509,
2258, 12519, 4527, and 6859, 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.
Appropriate action should be taken in regard to protest
numbers 5201-96-100089, 5201-96-100339, and 5201-96-100467, in
accordance with the decision in this protest.
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