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HQ 959353




October 28, 1996

CLA-2 RR:TC:TE 959353 jb

CATEGORY: CLASSIFICATION

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

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