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HQ 950741


April 24, 1992

CLA-2 CO:R:C:T 950741 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.92.0015

Mr. Richard M. Wortman
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49TH Street
New York, NY 10017

RE: Addition of some body supporting features to a teddy does not transform that underwear into a body supporting garment of heading 6210. Stays; cups; adjustable straps; spandex; bra

Dear Mr. Wortman:

This is in reply to your letter of November 20, 1991. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of mold- cup teddy, produced in Hong Kong. Please reference your client Mast Industries (Far East) Ltd., 90-289-5(323)I.

FACTS:

The merchandise at issue consists of an underwear teddy, Style VSI-603, constructed from 90% nylon and 10% spandex raschel lace-like openwork fabric. The garment features removable, adjustable shoulder straps, a snap cotton crotch, and a nine inch plastic stay in each side seam. The teddy also has soft molded cups, similar to those found in bathing suits.

ISSUE:

Whether the instant garment is considered "body-supporting" under the HTSUSA?

LAW AND ANALYSIS:

Heading 6212, HTSUSA, provides for, inter alia, brassieres, girdles, corsets, and similar articles, whether or not knitted or crocheted. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading states:

This heading covers articles of a kind designed for wear as body-supporting garments ..., and parts thereof. These articles may be made of any textile material including knitted or crocheted fabrics (whether or not elastic).

The EN do not, however, aid us in defining "body-supporting."

The Customs Service periodically issues the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories. The Guidelines, most recently published at 53 Fed. Reg. 52563 (Dec. 28, 1988), CIE 13/88 (Nov. 23, 1988), note that since certain types of garments are closely related in use, the Guidelines are to be used as an aid in determining the commercial designation and, hence, the classification of an article. Used as such, they represent the present position of the Customs Service.

The Textile Guidelines, supra, at 22, state that "body- supporting" garments do not include "garments containing Lycra spandex, or similar elastic-type yarns, the primary purpose of which is to cause the garment to fit snugly under outer garments." We can therefore conclude that "body-supporting" must be the garment's primary, not ancillary. function for the garment to be classifiable in heading 6212, HTSUSA.

It is our opinion that the instant merchandise does not meet this requirement. Even assuming, arguendo, that the molded cups provide support similar to conventional brassieres, the mere addition of these cups to a garment prima facie classifiable in a non-body-supporting garment provision does not transform that garment into one properly classifiable in heading 6212, HTSUSA. Indeed, taking your argument to its logical extreme, the insertion of identical cups and plastic side stays in a dress would transform that dress into a "body-supporting" garment. As you noted in your brief, the support and shape functions of a conventional bra are imparted by the interaction of the cups, bands, frames and back panels. See Gelmart Ind. v. United States, 11 CIT 70, 655 F. Supp. 482 (1987). The components of the lace-like teddy at issue do not work together to provide support similar to those articles enumerated in heading 6212, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6108.92.0015, HTSUSA, textile category 652, as 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. The applicable rate of duty is 17 percent ad valorem.

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 negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your 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, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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