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HQ 966804




January 13, 2004

CLA-2: RR:CR:TE 966804 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6212.90.0030

Ms. Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Request for Binding Ruling; Upper Body Knit Garment

Dear Ms. Friedman:

This is in response to your request on behalf of your client, Wacoal Sports Science Corp., dated September 4, 2003, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated of an upper body knit garment. Only one sample garment has been provided to the Bureau of Customs and Border Protection (CBP).

FACTS:

The subject garment is a man’s long sleeve pullover constructed of a finely knit 81 percent Coolmax™ polyester and 19 percent Lycra Spandex fabric. The garment features a mock turtleneck, side seams, and a raised hem at the lower edge of each sleeve and at the bottom of the garment. The fabric composition is designed to have wicking characteristics to absorb perspiration. The front and back of the garment each have two strips of mesh-like fabric on the inside, made of 80 percent Coolmax™ polyester and 20 percent Lycra Spandex, sewn with overlock stitching from the shoulder and running diagonally to the opposing seam at the upper waist. The overlock stitching used to attach the mesh panels forms seams that are visible on the outside of the garment. The fabric mesh panels cross at the front and back, roughly approximating the shape of an “x”, and the seams form a diamond shape at mid-chest. The strips on the back have a wider panel at each lower portion of the “X” which creates a triangular pattern below the diamond shape and an additional seam secures the strips by extending from side to side at the waist.

According to your submission, the stated purpose of the garment is to support the muscles and reduce shoulder strain. The mesh-like fabric strips are designed to fit over the rib cage of the wearer to support the respiratory muscles and improve air exchange. The diamond shaped panels in the front push against the sternum (the respiratory muscle) while the strips running along the back are designed to squeeze scapula bones together without constraining their movement. The large bands of reinforcement in the back are intended to support the dorsal muscles and improve posture. It is further noted that the pieced fabric construction is unique and has been designed to enhance performance in certain athletic activities, such as running, ball sports, or other sports which place a strain on the upper body and which involve significant aerobic activity. A patent application has been filed with the U.S. Patent and Trademark office to protect the garment’s design elements.

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).

The instant garment is constructed from a knit fabric and therefore would appear to be properly classified in Chapter 61, which provides for articles of apparel and clothing accessories, knitted or crocheted. Classification within Chapter 61, HTSUSA, is dependent upon whether the garment is a pullover classified in subheading 6110.30.3050, HTSUSA. However, in this case, we must also consider whether the subject garment is an “other” support garment of subheading 6212.90.0030, HTSUSA, which provides for brassieres, girdles, corsets, and similar articles.

The subject article has been designed to serve a specific purpose which goes beyond mere adornment and coverage to the upper body that typically characterizes a standard outerwear pullover classifiable in heading 6110, HTSUSA. Thus, in considering classification of the article in heading 6212, HTSUSA, which provides for body-supporting garments, we note that the EN for heading 6212 states, in relevant 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).

Based on your submission, it is evident that substantial resources have been invested to ensure that the subject article functions as a body supporting garment and to enhance athletic performance. Your submission included summaries of studies conducted on the garment measuring changes in arm swings for wearers of the garment. Furthermore, marketing materials for this garment demonstrate that it is intended to enable easier arm movement, provide support, and improve respiratory function. Finally, we have carefully reviewed the patent application for this invention and find that it is described as an upper body garment which has been designed to adhere closely to the chest portion of the upper body and provide focused support of the muscles used during inhalation without hindering the movement of the spinal column.

In CBP Headquarters Ruling letter (HQ) 965621, dated October 16, 2002, three men’s lower body garments consisting of 80 percent Coolmax™ polyester and 20 percent spandex knit fabric, with supporting fabric panels at the thigh, knee, buttocks, and hamstring, were classified in subheading 6212.90.0030, HTSUSA, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other, Of man-made fibers.” HQ 965621 determined that the supporting fabric panels were designed to support muscles, joints and tendons in the lower body. It was further noted in HQ 965621 that while the instant garments may be worn as outerwear, their entire function and design is centered on providing support to muscles, joints, and ligaments of the legs during physical activity. Similarly, in the instant case, the mesh-like support panels are designed to support specific muscles in the upper body during physical activity. In fact, the upper body garment in the subject ruling is the corresponding top for the lower body garments in HQ 965621 that were classified as body supporting garments of heading 6212, HTSUSA.

We further note that the subject garments would not be classifiable in heading 6114, HTSUSA, which is a basket provision intended to cover knitted garments which are not included more specifically in the preceding headings of the chapter. Heading 6114 includes, inter alia:

* * * (5) Special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts, leotards).

In HQ 960833, dated October 5, 1998, CBP determined that the exemplars given in the EN for heading 6114, such as fencing clothing, jockeys’ silks and ballet clothing, are generally worn only while engaging in that activity. In the instant case, the garment is not marketed for just one specific sports use but rather is described as having been designed to enhance performance in certain athletic activities, such as running, ball sports, or other sports which place a strain on the upper body and which involve significant aerobic activity. Furthermore, the subject article is more specifically provided for elsewhere in the tariff as a body supporting garment of heading 6212, HTSUSA.

Based on the foregoing, we find that the subject garment is properly classified as a body supporting garment in subheading 6212.90.0030, HTSUSA.

HOLDING:

The subject garment, as described herein, is classifiable in subheading 6212.90.0030, HTSUSA, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other: Of man-made fibers or man-made fibers and rubber or plastics.” The general column one duty rate is 6.6 percent ad valorem. The textile category is 659.

The designated textile and apparel category may be subdivided into parts. If so, the 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 your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is available now on the CBP web site at www.customs.gov.

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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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