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HQ 950685

March 11, 1992

CLA-2 CO:R:C:T 950685 SK


TARIFF NO.: 6212.10.1020

Donna L. Shira
Sharretts Paley Carter & Blauvelt, P.C.
67 Broad Street
New York, N.Y. 10004

RE: Classification of brassieres; EN to heading 6212 include all kinds of bras; garments intended to be worn as outerwear are not precluded from heading 6212; bras may be worn as outerwear; country of origin is Belgium where knitting, cutting and sewing takes place; 19 CFR 12.130; bead applique not substantial transformation

Dear Ms. Shira:

This is in response to your letter of October 31, 1991, on behalf of your client, Donna Karan New York, requesting the country of origin and textile classification for two garments. Two samples were submitted for our examination and will be returned to you under separate cover.


Two different styles were submitted for classification:

Style 420046A is an underwire bra constructed from 85% nylon and 15% spandex raschel knit lace-like material. The garment has underwire cups and features four plastic stays, adjustable shoulder straps and four double metal hook and eye closures at the back. Plastic sequins and beads are embroidered to the outer surface but do not obscure the underlying fabric. The article is designated a size 34 B.

Style 520156A is referred to in your submission as a bustier. The garment is also constructed from 85% nylon and 15% spandex raschel knit lace-like material. This garment has underwire cups, adjustable shoulder straps, four plastic stays and six double metal hook and eye back closures. The garment extends 3-3/4 inches below the bottom of the underwire cups. Imitation pearls and rhinestones are sewn to the outer surface, but like the other garment, do not obscure the fabric. The article is designated a size Medium.


Are these articles classifiable as outerwear or brassieres under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

What is the country of origin of these articles?



Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall 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, and if the heading and legal notes do not otherwise require, the remaining GRI's may be applied in order of their appearance.

There are two headings which potentially govern classification of the articles at issue: heading 6212, HTSUSA, which provides for brassieres and certain body support garments and heading 6114, HTSUSA, which is a residual category and covers garments not specifically included in other headings.

You request classification of the articles at issue under the latter heading and note that "because [the submitted samples] are designed for use as outerwear, they can no longer be classified as brassieres". The validity of your assertion depends on whether the submitted articles are excluded from classification as brassieres because they are intended to be seen when worn; this determination is made by examining the structural characteristics of the articles as well as their role in contemporary fashion.

You cite two previous Customs rulings, District Decision (DD) 858026, dated December 6, 1990, and New York Ruling Letter (NYRL) 860500, dated March 1, 1991, which you claim classified articles similar to those at issue as "other garments" under heading 6211, HTSUSA. In both cases, the articles classified were substantially different than the merchandise presently under review. In the first ruling, the garment at issue was a 100% cotton bandeau top. It did not provide the support functions of a brassiere and it is clear by the use of opaque, woven fabric and the flared waist that this article was outerwear. NYRL 860500 classified two garments: a 100% woven silk garment and a 100% woven cotton garment. Although both had underwires, and one style had adjustable shoulder straps, neither garment had the adjustable closures found on bras nor did the articles possess any additional features which would indicate that they were designed to be body supporting garments.

Heading 6212, HTSUSA, provides for brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted. Our initial inquiry is whether the submitted articles are properly classifiable as brassieres.

There is no doubt that the garments possess all of the structural features normally associated with brassieres: distinct cups, underwires, stays, support fabric, double hook and eye back closures. We note, however, that although you refer to Style 520156A in your submission as a "bustier", that is a misnomer. Bustiers are defined in the Essential Terms of Fashion, by Charlotte Calasibetta, as a "one-piece support garment which is combination brassiere and waist cincher, and comes to a few inches below the waist or to the hips". Style 520156A only extends 3-3/4 inches below the underwire cups and we are of the opinion that this article is a long line brassiere rather than a bustier.

The Fashion Dictionary, by Mary Brooks Picken, 1973, defines "brassiere" as "a close-fitting undergarment shaped to support the bust". Similarly, Webster's New Collegiate Dictionary, 1977, defines "brassiere" as "a women's close-fitting undergarment with cups for bust support". It is important to note that both definitions use the noun "undergarment" as a synonym for brassiere. Traditionally, this indicated the garment was one worn under outerwear, not as outerwear. In the instant case, the articles have been decorated with beads, sequins, rhinestones and pearls to such an extent that it is undeniably clear that these
articles are intended to be worn as outerwear. An article meant to be worn as outerwear is, by definition, seemingly in direct contradiction with the term "undergarment".

The undergarment industry has undergone tremendous change in the last few years as to what is currently acceptable as outerwear. Customs recognizes that fashion trends may dictate how certain garments are being worn and that bras worn as outerwear are a relatively new fashion phenomenon. When most dictionaries defined brassieres as "undergarments", the accepted fashion of the day mandated that brassieres be hidden from view when worn. As is readily apparent from what is currently in vogue, that rule no longer holds true. A brassiere does not have to be worn as an undergarment; it need only possess certain requisite body supporting functions.

This office made several inquiries to well-known lingerie and outerwear manufacturers to get the fashion industry's current definition of "brassiere". Olga Company, a manufacturer of lingerie, asserted that it is acceptable these days to wear bras as outerwear. They recognize this trend by manufacturing velvet bras that may be worn alone underneath a blazer or sheer blouse. The end result is that these bras, which are made by a traditional maker of lingerie and sold in lingerie departments, are intended to be seen when worn. Another manufacturer we contacted, Calvin Klein, makes both lingerie and outerwear. They too believe that the acceptable role of brassieres for use as outerwear has greatly expanded over the past several years. The Calvin Klein representative stated that although articles such as the subject merchandise may be worn as outerwear, they are functionally still brassieres. All articles incorporating features traditionally associated with brassieres (i.e., stays, underwire cups) are made in engineered foundation factories. These articles are constructed in the same manner as more traditionally designed bras that are not intended to be displayed when worn. Both types of garments are brassieres providing equal body supporting functions; the only difference is that it is now acceptable to let brassieres that have been embellished in some manner show under outerwear or even be worn by themselves.

Both Style 420046A and 520156A possess features designed to provide body support. Without ornamentation, these articles are undoubtedly classifiable as brassieres. With ornamentation, these articles are still brassieres, but current fashions dictate
that it is now acceptable for these articles to be seen when worn. Note that Customs distinguishes the garments at issue from those articles which are designed as outerwear but also provide some body support (e.g., sundresses with built-in underwires and stays in the bodice).

The Explanatory Notes (EN) to heading 6212, HTSUSA, state that this provision includes "brassieres of all kinds". The submitted articles are brassieres and, as such, are properly classifiable under heading 6212 of the Nomenclature.

Country of Origin

Section 12.130 of the Customs Regulations (19 CFR 12.130) is applicable to the merchandise at issue. Section 12.130(b) of the Customs Regulations provides that a textile product that is processed in more than one country or territory shall be a product of that country or territory where it last underwent a substantial transformation. A textile product will be considered to have undergone a substantial transformation if it has been transformed by means of substantial manufacturing or processing operations into a new and different article of commerce.

Section 12.130(d) of the Customs Regulations sets forth criteria in determining whether a substantial transformation of a textile product has taken place. This regulation states that these criteria are not exhaustive; one or any combination of criteria may be determinative, and additional factors may be considered.

Section 12.130(d)(1) states that a new and different article of commerce will usually result from a manufacturing or processing operation if there is a change in:

(i) Commercial designation or identity;
(ii) Fundamental character;
(iii) Commercial use.

Section 12.130(d)(2) of the Customs Regulations states that in determining whether merchandise has been subjected to substantial manufacturing or processing operations, the following will be considered:

(i) The physical change in the material or article as a result of the manufacturing or processing operations in each foreign territory or country, or insular possession of the United States;

(ii) The time involved in the manufacturing or processing operations in each foreign territory or country, or insular possession of the United States;

(iii) The complexity of the manufacturing or processing operations in each foreign territory or country, or insular possession of the United States;

(iv) The level or degree of skill and/or technology required in the manufacturing or processing operations in each foreign territory or country, or insular possession of the United States;

(v) The value added to the article or material in each foreign territory or country, or insular possession of the United States, compared to its value when imported into the United States.

Section 12.130(e)(1) provides that an article or material usually will be a product of a particular foreign territory or country, or insular possession of the United States, when, prior to importation into the United States, it has undergone in that foreign territory or country or insular possession, any of the following:

(iii) Weaving, knitting or otherwise forming fabric;

(iv) Cutting of fabric into parts and the assembly of those parts into the completed article.

It is clear that the sewing on of the beads, rhinestones and pearls in China does not produce a new and different article of commerce; there has been no change in commercial identity, character or use of the articles other than to ornament these articles so that they may be seen when worn.

The garments at issue are knit, cut, sewn and the stays and underwires are inserted in Belgium. Pursuant to Section 12.130(e)(1), the bras are therefore considered a product of Belgium barring any persuasive evidence to the contrary. In your submission you provide a breakdown of the cost and time involved in both the assembly work and the applique work. The production and assembly in Belgium costs approximately $15 for Style 420046A and $17.90 for Style 520156A. The time required is 25 minutes and 30 minutes respectively. The applique work in China costs
approximately $9.21 for Style 420046A and $12.97 for Style 520156A. The time required for this process is 4 hours and 6 hours respectively. While it is apparent that the time involved in sewing on the beads and pearls is significantly longer than the manufacturing process that takes place in Belgium, this is countered by the fact that the articles are knit, cut and sewn in Belgium.

Furthermore, Customs has issued several rulings holding that beading and the ornamentation of fabric and garments are not considered enough to qualify as substantial transformation as that term is defined in Section 12.130 of the Customs Regulations cited supra. See HRL's 088442 (4/25/91); 088550


Both Style 420046A and Style 520156A are classifiable under subheading 6212.10.1020, HTSUSA, dutiable at a rate of 32 percent ad valorem. The applicable textile category is 649.

The country of origin of the brassieres is Belgium.

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 your client 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 updated weekly and is available 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, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

The holding set forth above applies only to the specific factul situation and merchandise identified in the ruling request. This position is clearly set forth in Customs Regulations 19 CFR 177.9(b)(1), which states that a ruling letter is issued on the assumption that all information furnished in
connection with the ruling request and incorporated therein, either directly, by reference, or by implication, is accurate and complete in every material respect. Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event that there is a change in the facts previously firnished, the country of origin determination may be affected. In such case, it is recommended that a new ruling request be submitted in accordance with section 177.2, Customs Regulations (19 CFR 177.2).


John Durant, Director

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