OT:RR:CTF:FTM H256542 JER
Port Director
Port of Champlain,
U.S. Customs and Border Protection
237 West Service Road
Champlain, NY 12919
RE: Application for Further Review of Protest No. 0712-14-150009; Tariff Classification of an above knee girdle (compression wear) garment
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 0712-14-150009, timely filed on behalf of Montelle Intimates, Inc., concerning the classification of an above knee girdle (compression wear) garment under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise (“Style M340”) was entered on March 12, 2013, under heading 6212, HTSUS, specifically, subheading 6212.20.00, HTSUS, as brassieres, girdles, corsets, braces, suspenders, garters and panty-girdles, of man-made fibers and rubber or plastics: Girdles and panty-girdles. The entry was liquidated on January 24, 2014 under heading 6212, HTSUS, as entered. Protestant seeks reclassification of the above knee girdle (compression wear) as a garment classifiable as other, under subheading 6212.90.00. The importer timely filed a protest on or about April 21, 2014, requesting reclassification of the subject merchandise under subheading 6212.90.00, HTSUS, as “brassieres, girdles, corsets, braces, suspenders, garters and panty-girdles, of man-made fibers and rubber or plastics: Other.”
On the entry summary, CBP Form 7501, protestant described Style M340 as: “girdles, panty-girdle, man-made.” Likewise, protestant’s commercial invoice lists Style M340 as “ladies 76% nylon, 24% spandex, above knee girdle (compression wear).” Protestant describes the subject merchandise, Style M340, as being constructed of a tightly knit 76% nylon, 24% spandex micro mesh fabric, which imparts the garment’s “breathable” and stretchable characteristics. Protestant states that Style M340 is “recommended for post-surgery wear, such as abdominal, hip, flank and back procedures.” The garment covers the wearer’s body from the middle thigh to below the bust, with an open crotch design.
ISSUE:
Whether the subject above knee girdle (compression wear) (“Style 340”)” is classifiable under subheading 6212.20.00, HTSUS, as brassieres, girdles, corsets, braces, suspenders, garters and panty-girdles, of man-made fibers and rubber or plastics: Girdles and panty-girdles or under subheading 6212.90.00, HTSUS, as brassieres, girdles, corsets, braces, suspenders, garters and panty-girdles, of man-made fibers and rubber or plastics: Other.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on or about April 21, 2014, within 180 days of liquidation.
Further Review of Protest No. 0712-14-150009 was properly accorded to protestant pursuant to 19 C.F.R. §174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, protestant alleges the action of the Port is inconsistent with New York Ruling Letter (“NY”) N015528, dated August 22, 2007, in which CBP found that an all-in-one foundation garment was properly classified under subheading 6212.90.00, HTSUS.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2013 HTSUS provisions under consideration are as follows:
6212 Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted:
* * *
6212.20.00 Girdles and panty-girdles………………………………………………………..
* * *
6212.90.00 Other………………………………………………………………………………
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or 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 (August 23, 1989).
The ENs to heading 62.12, provide in pertinent part, that:
The heading includes, inter alia:
* * *
(2) Girdles and panty-girdles.
* * *
(7) Maternity, post pregnancy or similar supporting or corrective belts, not being orthopaedic appliances of heading 90.21.
Protestant asserts that the subject “above knee girdle (compression wear)” garment is similar to the garment in NY Ruling Letter N015528, dated August 22, 2007, in which a body supporting garment with an open-crotch panel was classified under subheading 6212.90.00, HTSUS. Protestant thus argues that Style M340 is not a “girdle” because like the garment of NY Ruling Letter N015528, Style M340 features an open crotch design and extends to the bust; covering more than the lower torso area. Protestant adds that Style M340 is registered as “post-surgical wear” and is made entirely up of stretchable fabric. Protestant therefore concludes that the subject merchandise “is not properly categorized in the girdle group.”
It is well settled that articles enumerated in heading 6212, HTSUS, each feature the unifying characteristic of providing support for the body or other garment. Victoria’s Secret Direct, LLC v. United States, 769 F.3d 1102, 1108 (Fed. Cir. 2014). This support for the body or other garments, constitutes the paramount function of the exemplars listed eo nominee in heading 6212, HTSUS. Victoria’s Secret at, 1108. The subheadings of heading 6212, HTSUS, focus the scope of the heading into distinct categories while retaining the unifying characteristic and paramount function of the overall heading. The subheadings at issue are contrasted by the least descriptive (subheading 6212.90.00, HTSUS) and the most descriptive terms (subheading 6212.20.00, HTSUS). In particular, subheading 6212.90.00, HTSUS, is a residual provision which provides for garments not otherwise specified elsewhere in heading 6212, HTSUS. On the other hand, subheading 6212.20.00, HTSUS, contemplates merchandise which is classifiable eo nominee as girdles and/or panty-girdles. Accordingly, garments which share the essential unifying characteristic, and paramount function of the overall heading while meeting the description of a girdle or panty-girdle are classifiable ejusdem generis with the articles of subheading 6212.20.00, HTSUS.
Protestant does not deny that the subject merchandise is a body support garment of heading 6212, HTSUS. Protestant contends that Style M340 differs from the description of a girdle found in CBP Informed Compliance Publication, Classification: Apparel Terminology Under the HTSUS (June 2008) (hereinafter, “Apparel Terminology”).
While the ENs to heading 6212, HTSUS, do not provide a definition of a girdle, both the Courts and CBP have addressed its meaning. The Ninth Circuit stated that: “[a] girdle may be defined as an undergarment that provides support and holds in the body along the lower torso, specifically, including the waist and hips.” Riddell, Inc. v. United States, 906 F. Supp. 2d 1355, 1365 (Fed Cir. 2013); citing, HQ 957469, dated November 7, 1995 (CBP defined a girdle as being: “[f]lexible, light-weight shaped corset, made partly or entirely of elastic… [a]n elasticized flexible undergarment worn over the hips and waist.”). Similarly, the Apparel Terminology referenced by protestant provides the following definition of a girdle:
Girdles/panty girdles (6212) - are garments normally worn next to the skin, which are designed to mold the lower torso and sometimes legs. They are typically made with two-way stretch fabric or one-way stretch fabric with non-stretchable control panels, with or without garters. Panty girdles are girdles with a closed crotch, and resemble panties.
Apparel Terminology, at 15. Similarly, in HQ 959284, dated October 29, 1996, CBP stated that:
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.
The common factors found among the various definitions offered for girdles and panty-girdles is that these items are undergarments made up of elastic or stretchable fabric which provide body support to the lower torso, hip, waist, and thigh area. The aforementioned descriptive terms and purposes linked to the definition of a girdle are substantially similar if not identical to Style M340 which is described in part as being “compression wear,” and covers the body from the middle thigh to below the bust.
Contrary to protestant’s position, the open-crotch design of Style M340 does not preclude classification under subheading 6212.20, HTSUS. In the same manner in which the Court agrees that a girdle is not limited by gender specifications, we find that the classification of a girdle is not limited to whether the article has an open or closed crotch design. See Riddell, at 1365. For example, in NY D84783 (February 24, 1999), CBP classified a girdle featuring an “open-crotch” design and stretchable fabric (60% nylon and 40% spandex) under subheading 6212.20.00, HTSUS. Lastly, the language of the Apparel Terminology ICP merely distinguishes “girdles” from “panty-girdles” noting only that “panty-girdles” are typically closed crotched. Yet, the Apparel Terminology definition does not preclude classification of girdles which are open-crotched.
Similarly, the post-surgical nature of Style M340 does not preclude classification under subheading 6212.20.00, HTSUS. As EN 62.12 explains, post-pregnancy, supportive or corrective belts which are not orthopedic appliances of heading 9021, HTSUS, are classifiable in this heading. For example, in NY N014148 (August 10, 2007), CBP classified a “post-partum girdle” as a girdle under subheading 6212.20.00, HTSUS. Likewise, in NY N004382 (January 8, 2007), CBP classified a “maternity support garment” as a girdle under subheading 6212.20.00, HTSUS. By contrast, in HQ 964402 (May 24, 2002), CBP classified a corset designed as a post-surgery back supporter under subheading 6212.30.00, HTSUS, as that article was a corset which was designed exclusively for upper torso and upper back support.
In the instant case, the paramount function and essential characteristics of Style M340 is to provide support from the middle thigh to below the bust. Unlike, the garment of NY N015528, which was classified under subheading 6212.90.00, HTSUS, Style M340 does not provide support to the bust area or upper back. See also HQ 964224 (June 13, 2001), Wherein CBP classified a multi-functional one-piece upper body garment with underwire brassiere, lace panels descending to below the waist under 6212.90.00, HTSUS). Instead, Style M340 provides body support from beneath the bust area to the mid-thigh area. Moreover, Style M340 is an under garment which is commercially marketed as an “above [the] knee girdle (compression wear)” and is made up of man-made fibers (76% nylon, 24% spandex). In sum, Style M340 possess the essential characteristics, paramount function, and description of those garments enumerated eo nominee in subheading 6212.20.00, HTSUS.
HOLDING:
By application of GRI 1 the above knee girdle (compression wear)” is classifiable in heading 6212, HTSUS. The merchandise is specifically classified in subheading 6212.20.00, HTSUS, which provides for: “[b]rassieres, girdles, corsets, braces, suspenders, garters and panty-girdles, of man-made fibers and rubber or plastics: Girdles and panty-girdles.” The 2013 column one, general rate of duty was 20% ad valorem.
You are instructed to Deny the Protest in Full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division