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HQ 962024

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July 30, 1998
CLA-2 RR:CR:TE 962024 jb

CATEGORY: CLASSIFICATION

TARIFF NO: 6212.10

Ms. Sally Lo
The Hong Kong Cancer Fund
1112 Jardine House
Central, Hong Kong

RE: Classification of used bras

Dear Ms. Lo:

This is in reply to your letter, dated June 30, 1998, wherein you ask for the proper tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), for used bras which will be imported into the United States. No samples were submitted to this office for examination.

FACTS:

The subject merchandise consists of thousands of used bras, manufacturer seconds and samples which will be collected over the month of July. You state in your letter that:

As part of an effort by Hong Kong and America to collect at least 40,000 bras, Nicholino, the American conceptualist artist, has asked Hong Kong to donate 5,000 bras. They will be woven into a giant 40'x100' tapestry of the Statue of Liberty to be presented to President Clinton who funds the National Cancer Institute in September to highlight the importance of breast cancer research.

As I cannot say the exact number which will be collected, they will be shipped as art material to a cancer organisation nearest to the site where the artist will be weaving his tapestry. * * *

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". Brassieres are specifically provided for at subheading 6212.10, 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.), and may incorporate fittings and accessories or non-textile materials (e.g., metal, rubber, plastics or leather).

There is no disputing the fact that as the subject merchandise consists of body supporting garments which are clearly provided for, eo nomine, under heading 6212, HTSUS, they should be classified accordingly.

At this point we would like to clarify two points. In your letter you refer to the used brassieres as "art material" which will be shipped to a site convenient to the artist. We would like to bring to your attention that any reference to these brassieres as "art material" is a misnomer. In their condition as imported, the subject brassieres, as already discussed above, are classifiable in the eo nomine provision for brassieres. The fact that subsequent to their importation into the United States they will be incorporated (that is, woven) into a tapestry does not change the classification for tariff purposes.

Secondly, we would like to make a distinction between the subject merchandise and articles classifiable in heading 6309, HTSUS, the provision for worn clothing and other worn articles. The EN to heading 6309, HTSUS, state:

In order to be classified in this heading the articles, of which a limitative list is given in paragraphs (1) and (2) of this Explanatory Note, must comply with both of the following requirements. If they do not meet these requirements they are classified in their appropriate headings.

(A) They must show signs of appreciable wear, whether or not they require cleaning or repair before use.

(B) They must be presented in bulk (e.g., in railway goods wagons) or in bales, sacks or similar bulk packings, or in bundles tied together without external wrapping, or packaged roughly in crates.

These articles are normally traded in large consignments, usually for resale, and are less carefully packed than is generally the case with new articles.

In essence, appreciable wear is descriptive of a garment or other article whose appearance has noticeably changed from its original/new/unused stage. This change in appearance must be the result of the various naturally occurring stages to which a fabric succumbs as a result of continuous use over an extended period of time (as for example, fraying of the fabric, fabric worn thin, etc.). In a nutshell, when classifying merchandise under heading 6309, HTSUS, the ill-effects of continued or habitual use of the article must be readily apparent (as evidenced by the fabric of that article). As you did not provide us with any samples, we cannot determine, at this time, whether heading 6309, HTSUS, is an appropriate classification alternative for the subject merchandise. Should you want to pursue classification in heading 6309, HTSUS, you should be prepared to forward samples of the garments to our office. Upon receipt of those articles, we will be prepared to issue a binding ruling classification.

As such, the subject merchandise is properly classified as brassieres in heading 6212, HTSUS.

HOLDING:

Depending on the fabric content of the bras in question, the bras will be classified in the appropriate subheadings of heading 6212.10, HTSUS, and will be subject to the corresponding quota/visa category and duty rate assessment.

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, we suggest that your client 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 the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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