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HQ 964537




February 7, 2002

CLA-2 RR:CR:TE

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.1020; 6212.30.0020

Mr. Garth Pauley
Specialist, Intimate Apparel
Limited Distribution Services
Seven Limited Parkway
Reynoldsburg, Ohio 43068

RE: Request for reconsideration of classification and Modification of NY G80103: Two woman’s upper body garments

Dear Mr. Pauley:

This is in response to a letter, dated September 14, 2000, on behalf of the Lane Bryant company, requesting reconsideration of Customs New York Ruling (NY) G80103 which classified woman’s undergarments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted to this office for examination and will be returned under separate cover per your request. We have reviewed this ruling and determined that the classification provided for merchandise identified as Style 0045 is incorrect. This ruling modifies NY G80103 by providing the correct classification for Style 0045.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY G82728 was published on October 31, 2001, in the Customs Bulletin, Volume 35, Number 44. No comments were received in response to the proposed notice.

FACTS:

Style 5407 is a woman’s upper body garment constructed of 79 percent nylon and 21 percent spandex paisley printed knit fabric. The front of the garment is comprised of 5 panels. The back is constructed of two panels with a back closure. The garment features shoulder straps with a rear slide adjustment. The front portion of the shoulder strap has been finished in ¾ inch
wide matching paisley knit fabric. The back portion of each shoulder strap features ¾ inch wide elastic in matching solid color. The built-in brassiere is comprised of lightly padded cups of knit fabric and foam construction with each having a single center seam for shaping. The cups have been sewn into an elastic net (knit construction) fabric that forms the interior built-in shelf support of the garment. The lower portion of this built-in shelf is constructed with a 1 ¼ inch wide black elastic with scalloped edging and the tradename “realwear” embroidered in black and repeating at 3 inch intervals. A single piece of blue elastic (3/4 inch wide) has been sewn to the inside of the paisley knit fabric strap. This soft blue elastic strip is sewn to the top inside edge of the garment in one continuous strip descending from the strap to under the arm and ending at the back seam closure. Strips of hook and eye closures run vertically along each back panel (8 ½ inches long). When fastened the hook and eye closures form a secure, non-gapping back seam composed of black knit edging strips sewn to the outside of the garment (1 ¼ inch wide by 8 ½ inches long). The bottom edge of the garment is slightly shaped so that the front center panel forms the longest panel. The same soft blue elastic used on the inside of the top edge has been secured to the inside of the entire bottom edge of the garment.

Style 0045 combines a woman’s underwire brassiere with long shaped panels that descend to the waist. The garment consists of a total of eight panels which cover the torso. The front center panels are longer than the other panels resulting in a slightly shaped hemline at the lower edge of the garment. Six of the connecting seams on these panels contain a strip of boning. The front panels feature metal eyes running in vertical strips along the edge. A satin ribbon is laced through the metal eyes, in alternating fashion, to join the two front panels at the center of the garment. The front of the shoulder straps are comprised of two narrow strips of knit fabric joined to a matching ¾ inch wide elastic with rear slide adjustment. The brassiere cups are constructed of 91 percent nylon and 9 percent spandex knit satin-like fabric with seams running horizontally for shaping. The cups are lined with a knit fabric and also feature a horizontal seam. The two front center panels and two back panels are unlined and constructed of the same satin-like knit fabric used in the brassiere cups. The remaining four panels are constructed of a 60 percent nylon 40 percent spandex fishnet knit fabric and are lined with a knit fabric. Each back panel has been edged with hook and eye closures that run vertically (8 ½ inches long) to completely close the garment. A soft narrow elastic (1/2 inch wide) with scalloped edge has been sewn along the top edge of the four back panels and at the bottom edge of all eight panels.

In New York Ruling (NY) G80103, dated August 28, 2000, Style 5407 was classified in subheading 6114.30.1020, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Tops, Women’s or girls“. Style 0045 was classified in subheading 6212.10.9020, HTSUSA, in the provision 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“.

You disagree with Customs classification of both styles. As such, you have asserted that Style 5407 has all the features normally associated with a support garment and brassiere and should be correctly classified under subheading 6212.10.5020, HTSUSA, in the provision for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Containing lace, net or embroidery: Other, Of man-made fibers.” You further assert that Style 0045 has the essential characteristics of a corset and should be classified in subheading 6212.30.0020, HTSUSA, which is the provision for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Corsets, Of man-made fibers.”

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor 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, 35128 (August 23, 1989).

Style 5407

With respect to the article identified as Style 5407, and classified by Customs under subheading 6114.30.1020, HTSUSA, we note that this is a residual provision for knit garments which are not included more specifically in the preceding headings of Chapter 61. Thus, we must first consider whether or not there are any other relevant provisions in Chapter 61 that may be applicable to Style 5407.

Heading 6109, HTSUSA, provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted.” The ENs to heading 6109 define “T-shirts” as lightweight knitted or crocheted garments of the vest type with long or short sleeves. The EN further states that the heading to 6109 also includes singlets and other vests which are classified in the heading without distinction between male and female wear.

The subject article is sleeveless, having narrow adjustable shoulder straps. Thus, it does not meet the definition of a “T-Shirt”. However, it is well established that certain underwear styled camisoles are classifiable as “singlets” under heading 6109, HTSUSA. Furthermore, it was noted in HQ 089280, dated May 13, 1991, that for classification within Ch. 61, undergarments are divided into two categories; those which are worn below the waist are provided for within the provisions of heading 6108, HTSUSA, and those which are worn above the waist, except for full slips, are indicated in the terms of the headings of 6109, HTSUSA. Thus, the article now at issue must be similar to a camisole, singlet, tank top or undershirt to be within the scope of heading 6109, HTSUSA .

In Headquarters Ruling (HQ) 086977, dated June 19, 1990, a silk knit camisole designed to be worn under a shirt and over a bra, was classified under subheading 6109.90.2020, HTSUSA. In defining a “singlet” as an undershirt, it was determined that a camisole is similar to an undershirt and therefore properly classified in heading 6109, HTSUSA. The following rulings also classified various women’s camisoles within heading 6109: HQ 089083, dated July 2, 1991; HQ 951246, dated June 24, 1992; HQ 951247, dated June 24, 1992; HQ 951809, dated September 8, 1992, HQ 952324, dated November 25, 1992; and HQ 959031, dated July 23, 1996. It is important to note, however, that none of the camisoles in the aforementioned rulings had a sewn-in brassiere and a back closure. Because the article has a sewn-in shelf style bra with hook and eye closures at the back, we do not believe it is similar to the “singlets” (camisoles) classifiable within heading 6109, HTSUSA.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, C.I.E. 13/88, November 23, 1988 (Textile Guidelines) sets forth features which would preclude a garment from consideration as a “tank top” under heading 6109, HTSUSA:
pockets, real or simulated, other than breast pockets; any belt treatment including simple loops; any type of front or back neck opening (zipper, button, or otherwise).

Although the Textile Guidelines specifically preclude any type of front or back “neck” opening, we presume this would also preclude those garments having openings that extend the entire length of the front or back . Such a neckline usually results in the absence of material at the neck because the front and/or back of a “tank top” may have a round, V, U, boat, square or other type of neckline that drops below the nape of the neck. Since the subject garment, Style 5407, has a full back opening with hook and eye closure, it is our determination that the full length hook and eye back closure would prevent this article from classification as a “tank top” under heading 6109, HTSUSA.

In determining whether or not the subject garment (Style 5407) is a brassiere classifiable under subheading 6212.10.5020, HTSUSA, we note that the top is designed with a built-in bra to provide support and is constructed of a knit fabric that provides total coverage to the wearer. However, a garment of this construction would be extremely cumbersome as a brassiere. The top itself is designed with five seamed panels that descend from top to bottom and completely cover the torso with a substantial opaque knit fabric. Although the seams connecting these panels create a snug fit, such detailing may prove bulky under a close-fitting top. Furthermore, this top has been constructed with two layers of fabric, i.e., a shelf bra and the exterior portion of the top.

Therefore, it is Customs determination that this garment, Style 5407, is not a brassiere. This decision is supported by HQ 950364, dated January 17, 1992, in which a sleeveless pullover with 1 inch shoulder straps, made of fine knit cotton, U-shaped neckline with a burnt-out lace insert, and extending below the waist, was classified as a “nonunderwear” tank top under subheading 6109.10.0060, HTSUSA. In reaching this decision, Customs applied the Textile Guidelines which specifically state that “the term ‘underwear’ refers to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public indoors or out-of-doors.”

It is important to note that the garment identified as Style 5407, is designed and intended to be marketed with coordinating lounging pants, camisoles and oversize shirts that are described by the importer as “sleepwear” garments. These garments are constructed of the same fabric/colors as the subject top. In addition, bras and panties are marketed in fabrics and colors that match Style 5407.

We have assessed the subject top in conjunction with the coordinating pants, camisole and oversized shirt, and have determined that it would be better suited as loungewear (outerwear) than sleepwear. In Mast Industries v. United States, 9 CIT 549, 552 (1985), aff’d, 786 F. 2d 1144 (1986), the court noted the definition of “nightwear” as “garments to be worn to bed.” In the subject case, Style 5407 has a hook and eye closure along the back and sewn-in shelf bra that would render this garment uncomfortable as sleepwear. If the subject top is paired with the coordinating lounging pants and/or long oversize shirt, it could be used as loungewear. However, it is our understanding that the top is imported separately from the coordinating pants/oversize shirt. Therefore, it would not be classifiable under heading 6104, HTSUSA, as a loungewear “ensemble” because it is not entered with a garment designed to cover the lower part of the body (see EN 6104).

The next relevant provision is heading 6106, HTSUSA, which provides for women’s blouses, shirts and shirt-blouses, knitted or crocheted. Once again, the Textile Guidelines provide that where a women’s garment has excessively revealing arm or neck openings, it will be excluded from consideration as a shirt or blouse and considered a top. Thus, it is Customs determination that the garment identified as Style 5407 is a knit top which is not included more specifically in the preceding headings of Chapter 61 and is properly classifiable as an “Other” knitted garment of man-made fibers under subheading 6114.30.1020, HTSUSA.

In view of the foregoing, we affirm NY G80103, dated August 28, 2000, which classified Style 5407 in subheading 6114.30.1020, HTSUSA, as “Other garments, knitted or crocheted: Of man-made fibers: Tops, Women’s or girls“.

Style 0045

The second garment is identified as Style 0045 and consists of an underwire bra with panels that descend to the waist, adjustable straps of less than 1 inch, a hook and eye back closure, and front closure laced with a satin ribbon. Heading 6212, HTSUSA, provides for, “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted.” The EN to heading 6212, HTSUS, states, 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:

Brassieres of all kinds.
Girdles and panty-girdles.
Corselettes (combinations of girdles or panty-girdles and brassieres). Corsets and corset-belts. These are usually reinforced with flexible metallic, whalebone or plastic stays, and are generally fastened by lacing or by hooks. Suspender-belts, garters,

The article now in question combines multiple features into one undergarment: a body supporting brassiere (underwire at the cups), adjustable straps, supportive panels that shape and cover the torso and extend below the waist, six “stays” (or boning) which connect the panels, a “lacing” style closure in the front, and a hook/eye style closure in the back. As such, it is most similar to a “corset “ which is further supported by the definitions presented in the following lexicographic sources:

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.

A stiff shaping garment of the torso, tending to pronounced diminution of the waist and raising of the bust. A variant was used by men as well. Infra-Apparel, Richard Martin and Harold Koda (1993), at 47.

Based on these definitions, the “corset” features a combination of body supporting elements that lift the bustline, diminish the waistline, and provide shaping to the torso. The undergarment now in question has center front and rear panels that are constructed of 91 percent nylon and 9 percent spandex knit fabric. The four side panels are constructed of 60 percent nylon and 40 percent spandex fishnet knit fabric. The construction and fabric content provide exceptional body support to the torso. Further, the subject garment shares all of the same features provided in the above definitions of the “corset.” In view of the foregoing, we have determined that the subject article is a “corset” and specifically provided for under heading 6212, HTSUSA.

In view of the foregoing, the article identified as Style 0045 is properly classifiable as a “corset” of man-made fibers under subheading 6212.30.0020, HTSUSA.

HOLDING:

NY G80103 is hereby modified.

The merchandise identified as Style 5407 is correctly classified in subheading 6114.30.1020, HTSUSA, as “Other garments, knitted or crocheted: Of man-made fibers: Tops, Women’s or girls“. The general column one duty rate is 32.7 percent ad valorem. The textile category is 639.

The merchandise identified as Style 0045 is correctly classified in subheading 6212.30.0020,HTSUSA, which provides for, “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Corsets, Of man-made fibers.” The general column one duty rate is 24 percent ad valorem. The textile category is 649.

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 renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection 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 applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after the publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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