CLA-2: RR:CR:TE 964224 ASM
Port Director
Port of New York,
c/o Chief, Residual Liquidation and Protest Branch
Room 761
U.S. Customs Service
6 World Trade Center
New York, New York 10048
RE: Decision on Application for Further Review of Protest No. 1001-00-101527, filed April 5, 2000, Concerning the classification of women’s one-piece undergarment
Dear Port Director:
This is a decision on a protest timely filed on April 5, 2000, by Meeks & Sheppard, attorneys, on behalf of Lady Ester Lingerie corp. This protest was filed against Customs demand for redelivery of the above-captioned merchandise. A sample has been received by this office.
FACTS:
The subject articles are identified as women’s undergarments, Style # 33925, and consist of a one-piece upper body garment with underwire brassiere, lace panels desending to below the waist, and four detachable garters. It is being imported with coordinating thong panties. These items are constructed of 100 percent raschel knit lace-like nylon fabric. The upper-body garment features underwire support at the cups, a three panel front and a single back panel, adjustable shoulder straps, a 2-1/2 inch self fabric sewn-on ruffle at the bottom and four removable garters. Small red and black alternating embroidered hearts are sewn to the top edge of the camisole and on the front part of the shoulder straps.
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The garments were entered as an underwear set under subheading 6108.92.0015, HTSUSA, which is the provision for “Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Other: Of man-made fibers: Underwear: Other: Women’s.” However, Customs concluded that the garments were not classifiable as an underwear set and ordered redelivery of the merchandise on January 18, 2000.
At this time, the protestant agrees with Customs determination that the upper body garment and thong panty are not classifiable as an underwear set and that the thong panties are separately classifiable under subheading 6108.22.9020, HTSUSA, which provides for “Women’s or girls’ slips, petticoats, briefs, panties, night-dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Briefs and panties: Of man-made fibers: Other, Women’s.” However, the protestant disagrees with Customs determination that the upper body garment is properly classifiable in subheading 6109.90.1065, HTSUSA, under the provision for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers, Women’s or girls’: Tank tops and singlets: Women’s.”
The protestant contends that the upper body garment is classifiable in subheading 6212.90.0030, HTSUSA, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other, Of man-made fibers or man-made fibers and rubber or plastics.” In the alternative, the protestant claims that the article is classifiable in subheading 6114.30.3070, HTSUSA, as “Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Women’s or girls’.”
ISSUE:
What is the proper classification for the upper body garment?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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 may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
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Heading 6109, HTSUSA, provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted.” The ENs to heading 6109 define “T-shirts” as lightweight knitted or crocheted garments of the vest type with long or short sleeves. The EN further states that the heading to 6109 also includes singlets and other vests which are classified in the heading without distinction between male and female wear.
The subject article is sleeveless, having narrow adjustable shoulder straps. Thus, it does not meet the definition of a “T-Shirt”. However, it is well established that certain underwear styled camisoles are classifiable as “singlets” under heading 6109, HTSUSA. In Headquarters Ruling (HQ) 086977, dated June 19, 1990, a silk knit camisole designed to be worn under a shirt and over a bra, was classified under subheading 6109.90.2020, HTSUSA. In defining a “singlet” as an undershirt, it was determined that the camisole was similar to an undershirt and therefore properly classified in heading 6109, HTSUSA. The following rulings also classified various women’s undergarment camisoles within heading 6109: HQ 089083, dated July 2, 1991; HQ 951246, dated June 24, 1992; HQ 951247, dated June 24, 1992; HQ 951809, dated September 8, 1992, HQ 952324, dated November 25, 1992; and HQ 959031, dated July 23, 1996.
It is important to note, however, that none of the camisoles in the aforementioned rulings had underwire at the cups and/or garters. Furthermore, it was noted in HQ 089280, dated May 13, 1991, that for classification within Ch. 61, undergarments are divided into two categories; those which are worn below the waist are provided for within the provisions of heading 6108, HTSUSA, and those which are worn above the waist, except for full slips, are indicated in the terms of the headings of 6109, HTSUSA. Thus, the article now at issue must be similar to a camisole, singlet, or undershirt to be within heading 6109, HTSUSA . Because the article has supporting underwire at the cups, four garters to attach and support hose, and is designed to fall below the waist with or without hose being attached to the removable garter clips, we do not believe it is similar to the enumerated garments of heading 6109, HTSUSA.
Heading 6212, HTSUSA, provides for, “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted.” The EN to heading 6212, HTSUS, states, 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:
Brassieres of all kinds.
Girdles and panty-girdles.
Corselettes (combinations of girdles or panty-girdles and brassieres).
Corsets and corset-belts. These are usually reinforced with flexible metallic, whalebone or plastic stays, and are generally fastened by lacing or by hooks.
Suspender-belts, …garters, …
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The article now in question combines multiple features into one undergarment: a body supporting brassiere (underwire at the cups), adjustable straps, decorative non-supporting lace panels that cover the torso and extend below the waist, and garters for supporting and securing hose. As such, it is most similar to a corset or corselette. However, in order to determine whether or not the subject undergarment can be classified under heading 6212, HTSUSA, as one of the specifically named exemplars, we have undertaken a review of the lexicographic sources.
A “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.
A stiff shaping garment of the torso, tending to pronounced diminution of the waist and raising of the bust. A variant was used by men as well. Infra-Apparel, Richard Martin and Harold Koda (1993), at 47.
A woman’s close-fitting boned supporting undergarment often hooked and laced, extending from above or beneath the bust or from the waist to below the hips, and having garters attached—sometimes used in pl. Webster’s Third New International Dictionary of the English Language (1968), at 513.
A “corselette” is defined as:
Under-garment combining girdle or lightly-boned corset and brassiere. Also called foundation or one-piece corset. The Fashion Dictionary, Mary Brooks Picken (1973), at 89.
Foundation with firm support achieved by bonding, 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, 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, Francois Boucher (1983), at 652.
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Based on these definitions, both the “corset” and “corselette” feature a combination of body supporting elements that lift the bustline, diminish the waistline, and flatten the abdomen. Although the undergarment now in question shares some of the same features as the “corset” and “corselette”(it supports the bustline and has garter attachments), the knit lace panels covering the torso and falling below the waistline fail to provide support to these areas which are key features of the “corset” and “corselette.” However, we note that heading 6212, HTSUSA, also specifies that “similar articles” may be classifiable within the heading.
Undergarments classifiable in heading 6212, HTSUSA, do not necessarily have to be designed with all the features of an article which has been specifically enumerated in the heading. In HQ 956668, dated February 28, 1995, certain undergarments identified as “merry widows” were classified under subheading 6212.90.0030, HTSUSA. These undergarments were designed of 100 percent polyester with coverage extending from bust to slightly below the waist, support panels, underwire cups, hook and eye closures, plastic stays, ruffled lace trim, and four detachable garters. In the ruling it was noted that corsets and corselettes combine into one garment certain brassiere and torso shaping features which tend to raise the bustline and diminish the waist. However, the “merry widow” garment simply reached the waist without holding in the waist area. Thus, the ruling determined that while the garments failed to meet a key function of a corset (holding in the waist area), they provided minimal bust support and a means to hold up stockings by use of the garters. Specifically, the ruling noted, “As the garments do provide some body support, and provide support for other articles of apparel, i.e., stockings, the garments are classifiable in heading 6212, HTSUSA, as similar articles.”
Like the “merry widows” in HQ 956668, the subject article lacks the key function of a corset or corselette because it does not hold in the waist. However, it does provide some body support at the bustline and has four garters which are designed to hold-up stockings. Furthermore, it has been well established that one-piece, “multi-functional”, body supporting undergarments, such as the one at issue, are classifiable in heading 6212, HTSUSA. In HQ 959284, dated October 29, 1996, garments identified as “Body Briefers” and “Merry Widows” were classified as “other” garments under subheading 6212.90.0030, HTSUSA. In characterizing these articles as “multi-functional garments”, it was noted that these one-piece undergarments combined features of a girdle and brassiere or corset and long-line brassiere. See, also, HQ 959353, dated October 28, 1996; HQ 959282, dated October 29, 1996; and HQ 963631, dated August 1, 2000.
In view of the foregoing, we have determined that the subject article is similar to the “corsets” or “corselettes” which are specifically provided for under heading 6212, HTSUSA, and the ENs. As such, the article is properly classifiable as an “other” garment under subheading 6212.90.0030, HTSUSA.
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HOLDING:
The subject merchandise, an upper body garment, is correctly classified in subheading 6212.90.0030, HTSUSA, which provides for, “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other, Of man-made fibers or man-made fibers and rubber or plastics.” The general column one duty rate is 6.8 percent ad valorem. The textile quota category is 659.
The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliqudation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.
No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov by means of the Freedom of Information Act, and by other methods of public distribution.
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 the importer, by copy of this letter, be advised to 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 available for inspection at a 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 applicable to textile merchandise, the importer should contact a 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