OT:RR:CTF:FTM H308382 MJD
Mr. Jeffrey M. Telep
King & Spalding LLP
1700 Pennsylvania Ave. NW, Suite 200
Washington, D.C. 20006-4707
RE: Affirmation of NY N307021; Classification of women’s brassieres
Dear Mr. Telep:
This is in response to your request, dated January 15, 2020, for reconsideration of New York Ruling Letter (“NY”) N307021, issued to your client, Simple Wishes LLC, on November 13, 2019. In that ruling, U.S. Customs and Border Protection (“CBP”) found that the SuperMom All-in-One Bra and the Foundation All-In-One Nursing and Pumping Bra were classified under subheading 6212.10.9020, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other: Of man-made fibers.” We have reviewed NY N307021, determined that it is correct and for the reasons set forth below, we affirm NY N307021.
NY N307021 described the SuperMom All-in-One Bra and the Foundation All-In-One Nursing and Pumping Bra as follows:
SuperMom All-in-One Bra is a multi-functional brassiere in that it may be used for maternity, nursing or pumping breast milk and can also be worn all day under clothing. The brassiere is constructed of 87% nylon, 13% spandex knit fabric and features mesh front panels over soft fabric sewn-in cups. The brassiere also features lace-like trim along the body of the bra, elasticized adjustable and convertible shoulder straps, an adjustable triple row six hook and eye closure at the back and elasticized bands along the armholes, sides and bottom. The garment also features a detachable, adjustable pumping halter strap secured to the front of the bra with two plastic fasteners. The halter strap can be worn over the neck while pumping to promote a tight seal and maintain support as the bottles fill. The shoulder straps have a plastic clip at the bust area to allow front access to the breast for nursing and pumping purposes through the inner pumping panel, which is a knit fabric panel with an opening. Foundation All-In-One Bra is a knit brassiere constructed of 92% nylon, 8% spandex and is multi-functional in that it allows the wearer to use it for maternity, nursing or pumping breast milk and can also be worn all day under clothing. The garment features elasticized trim sewn along the top edges of the garment, a scooped neckline and a U-shaped back, a change in knit pattern at the bust, a double layer of fabric in the front, removable foam cups, elasticized adjustable shoulder straps, an adjustable triple row six hook and eye closure at the back and a knit bottom band measuring approximately 1 ½ inches wide. The brassiere also features a detachable, adjustable pumping halter strap secured to the front of the bra with two plastic fasteners. The halter strap can be worn over the neck while pumping to promote a tight seal and maintain support as the bottles fill. The shoulder straps have a plastic clasp at the bust area, which allows both sides of the front of the brassiere to be lowered to expose the inner pumping panel. The inner pumping panel is constructed from 95% cotton, 5% spandex knit fabric and features an opening that allows the wearer to nurse or pump breast milk.
In your request for reconsideration, you argue that the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra are properly classified in subheading 6307.90.9889, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” You state that classification of the garments in subheading 6307.90.9889, HTSUSA, is per application of the General Rules of Interpretation (“GRI”) 3(b) because they are either composite products made up of different components or goods put up in sets for retail sale. The first component or good is the brassiere classified in subheading 6212.10.9020, HTSUSA. The second component or good is the breast-pumping halter strap with breast pumping panels classified in subheading, 6307.90.9889, HTSUSA.
You also argue that because the garments are used exclusively for breast feeding and breast milk pumping, the essential character of the garments is to facilitate breast feeding. This is provided by the fact that the garments are, as you state, “specially designed for nursing mothers and are sold through a retail outlet that specializes in nursing and pumping bras and breast pumping accessories.” You further argue that the design of the garments are specifically designed for women that are breast milk pumping because the inner cups of the garments provide an opening used exclusively for inserting breast pumps, a feature that would be unnecessary if the garments weren’t worn by individuals who are breast milk pumping. Moreover, no women would purchase the garments if they were not pumping breast milk. As a result, it is the pumping halter strap with the breastfeeding panels that lends to the essential character of the garments, which is classified in subheading 6307.90.9889, HTSUSA. In the alternative, you argue that the garments should be classified per GRI 3(c) which would still make subheading 6307.90.9889, HTSUSA, the appropriate subheading as it is numerically last in comparison to subheading 6212.10.9020, HTSUSA. Lastly, you state that GRI 3(a) is inapplicable because the headings at issue, subheading 6307.90.9889, HTSUSA, and subheading 6212.10.9020, HTSUSA, are equally specific.
In support of your arguments you rely on two previous CBP rulings for Simple Wishes products, NY N058479, dated May 1, 2009, classifying a hands-free pumping bustier, and NY N243735, dated July 23, 2013, classifying a hands-free breast pump accessory. These Simple Wishes products were classified under subheading 6307.90.9889, HTSUSA, and you claim that they are similar to the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra. You also rely on NY N234931, dated November 30, 2012, where CBP classified a nursing bustier under subheading 6307.90.9889, HTSUSA, which you also argue is similar to the garments at issue here. Furthermore, you argue that CBP erred in relying on the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) to heading 6212, HTSUS, which provides that the heading covers “Brassieres of all kinds” because it “fails to account for [the] multiple-component nature” of the garments and the “classification treatment mandated by the General Rules of Interpretation.” Lastly, you state that the word “bra” in the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra, should not govern classification of the garments in subheading 6212.10.9020, HTSUSA.
We agree that the SuperMom All-in-One Bra and the Foundation All-In-One Nursing and Pumping Bra are composite goods classified per GRI 3(b). We also agree that the brassieres are one of the components of the composite goods. However, we disagree that the halter straps with breastfeeding panels makes up the other component. GRI 3(b) provides for “composite goods consisting of different materials or made up of different components.” The breastfeeding panels, which are incorporated in the brassieres and form the inside layer of the brassieres, where the breast pumps are inserted, are not a different component. The breastfeeding panels are part of a singular component, the brassiere. Therefore, the breastfeeding panels cannot be separated from the brassieres to form a component of the composite goods with the breast pumping halter straps. Instead, the components of the composite goods at issue here are the brassieres and the breast pumping halter straps.
The brassieres are classified in heading 6212, HTSUS, which provides for brassieres eo nominee. A brassiere is a garment that supports the breasts. Moreover, EN 62.12 provides that the heading covers “articles of a kind designed for wear as body-supporting garments.” In addition, brassieres have features which include adjustable straps, adjustable hook and eye closures, a bottom band, and snug fitting fabric. See Headquarters Ruling Letter (“HQ”) 954488, dated October 6, 1993; HQ 968242, dated August 30, 2006; and HQ 962702, February 22, 2000. The SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra have the requisite support required for the breasts and have features associated with a brassiere. Moreover, Simple Wishes on their website describes the SuperMom All-In-One Nursing and Pumping Bra as having “…comfortable support and multi-functional convenience [that] fits your body…provid[ing] great support and separation of the breasts, especially for busty moms.” Similarly, the Simple Wishes website describes the Foundation All-in-One Nursing and Pumping Bra as “provid[ing] support, comfort, functionality and performance all in one, and is designed to be the one bra that can do it all.” Therefore, the brassieres are properly classified in heading 6212, HTSUS, specifically in subheading 6212.10.9020, HTSUSA, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other: Of man-made fibers.”
The other component of the garments is the breast pumping halter strap. It is an accessory to the brassieres. The term “accessory” is not defined in the tariff schedule or the ENs, so we must rely on external definitions. Merriam-Webster’s Collegiate Dictionary Online, (2001), defines “accessory” as a thing of secondary or subordinate importance or an object or device not essential in itself but adding to the beauty, convenience, or effectiveness of something else. In HQ 088540, dated June 3, 1991, CBP defined an accessory as an article that is related to the primary article, and intended for use solely or principally as an accessory. The pumping halter strap at issue meets the definition of an accessory. It is of secondary importance, related to the primary article, the brassiere, and is not essential to the use of the garments as it is “intended to be worn optionally while pumping,” to provide support as the breast pumps fill. Thus, the pumping halter strap functions as an accessory to the brassieres that adds to the convenience of using the brassieres. As a result, the breast pumping halter strap is properly classified under subheading 6117.80.9540, HTSUSA, as “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other: Of man-made fibers: Other.”
Pursuant to GRI 3(b), the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra as composite goods made up of different components must be classified by the component which imparts their essential character. EN VIII to GRI 3(b) explains that “[t]he factor which determines essential character will vary as between different kinds of goods,” and may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods. Among those factors identified in EN VIII to GRI 3(b), recent court decisions concerning “essential character” analysis under GRI 3(b) have primarily focused on the role of the constituent material in relation to the use of the goods. See Estee Lauder Lauder, Inc. v. United States, 815 F. Supp. 2d at 1296 (Ct. Int’l Trade 2012); Structural Industries v. United States, 360 F. Supp. 2d 1330 (Ct. Int’l Trade 2005); Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
The essential character of the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra, is the brassiere. The brassiere is the main component of the garments, and dominates in terms of bulk, quantity, weight and value in comparison to the pumping halter strap. Moreover, the brassiere’s role in relation to the use of the garments is incomparable to that of the pumping hater strap. The garments purpose is to provide support to the breast, and it is the brassieres that provide support to the breasts, not the pumping halter strap. In Victoria’s Secret Direct, LLC v. United States, 908 F. Supp. 2d 1332, 1354 (2013), the court stated that the items classified in heading 6212, HTSUS “have as their essential characteristic and purpose either support of a part of the body or support of a garment.” The brassieres at issue here fits this description. The garments also allow the wearer to pump breast milk and nurse, but this is ancillary to their primary function of providing support to the breasts.
Simple Wishes argues that the purpose of the garments is to facilitate breast feeding, which is supported by the fact that they are designed for nursing mothers and sold through a retail outlet that specializes in nursing and pumping bras and breast pumping accessories. As a result, breast feeding and breast pumping is the essential character of the garments. In support of their argument, Simple Wishes provided documentation of two-star and three-star reviews from customers to prove that the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra should not be considered brassieres because no individual who is not breast milk pumping would wear the garments as garden variety, every day typical brassieres. For example, one commentator wrote “[t[he price is great compared to other pumping bras, but there’s too much bulky fabric and it’s almost impossible for [y]our chest to look smooth while wearing this.” Another commentator stated “[t]he fabric is soft, but…if you want to wear this under anything that shows texture, like a tee shirt or regular top, it will show all of the folds and wrinkles in the fabric, of which there are many.” Yet another commentator stated that “[t]here’s so many layers to it, that the cups will not sit flat. It is necessary to have the cup inserts in place at all times, even if you don’t want the extra padding, because the layers underneath will show through as ripples.”
While it is probable that someone who is not nursing might not purchase the garments for themselves as a typical brassiere, that the garments are made for nursing mothers, and are sold in a retail outlet that specializes in garments and accessories for nursing mothers, that does not take away from the fact that the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra are brassieres. Again, the garments have the requisite support required of a brassiere and features associated with a brassiere. Therefore, they are properly classified as brassieres. The garments are also used for breast milk pumping and nursing which is a type of specialty feature allowed for by heading 6212, HTSUS. This is supported by the fact that EN 62.12 clearly states that the heading includes “[b]rassieres of all kinds.” As CBP correctly pointed out in HQ 962702, “this shows the clear intent of the Harmonized System drafters to capture brassieres for special purposes, if they are constructed as brassieres, within heading 6212.” That means heading 6212, HTSUS, does in in fact contemplate the multiple component nature of the garments at issue here and the exclusive nature of the brassieres in regards to its singular consumer base i.e. nursing and breastfeeding mothers.
Moreover, the breast pumping halter strap cannot be the essential character of the garments because even when the brassieres are used for breast milk pumping, the halter straps are not necessary. As mentioned above, the pumping halter straps are optional items used when breast milk pumping. As an item that is worn optionally, the pumping halter straps cannot be considered the essential character of the brassieres. Therefore, we find that the essential character of the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra, is the brassiere which is classified in heading 6212, HTSUS, specifically in subheading 6212.10.9020, HTSUSA, as “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other: Of man-made fibers.”
Simple Wishes also argues that the articles in NY N058479, NY N243735, and NY N234931 are similar to the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra. Upon review, we find that the articles at issue in the referenced rulings are different from the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra. The articles in the above mentioned rulings are exclusively used for hands-free breast milk pumping and are worn only when breast milk pumping. When the breast milk pumping is completed the articles are taken off. In contrast, the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra, provide the necessary support to the bust and can be worn all day long. Therefore, unlike the articles in NY N058479, NY N243735, and NY N234931, they are considered underwear and are properly classified in subheading 6212.10.9020, HTSUSA. Lastly, in classifying the garments at issue here we did not focus on the word “bra” in the SuperMom All-In-One Bra and the Foundation All-In-One Nursing and Pumping Bra, but rather the use, function, and physical properties of the garments.
Accordingly, we affirm NY N307021, dated November 13, 2019, which correctly classified the SuperMom All-in-One Bra and the Foundation All-In-One Nursing and Pumping Bra under heading 6212, HTSUS, and specifically in subheading 6212.10.9020, HTSUSA, as “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other: Of man-made fibers.”
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division