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