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NY H88484

April 5, 2002

CLA-2-62:RR:NC:TAB:354 H88484


TARIFF NO.: 6212.20.0020

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

RE: The tariff classification of compression active wear from Thailand

Dear Ms. Friedman:

In your letter dated March 7, 2002, on behalf of Wacoal America Inc., you requested a tariff classification ruling.

Three samples were submitted. The lower body garments are manufactured from finely knit 80% polyester 20% spandex fabric. Style 120805 reaches above the knee, style 120806 reaches below the knee and style 120809 reaches the ankle. All the garments feature an enclosed one-inch highly elasticized waistband with drawstring adjustment. A three-inch wide two-ply overlaid panel extends down from the waist on either side of each garment. Above the knee the overlaid panel splits to cross the front of the leg and curve behind the knee. On each garment this panel extends to the bottom. A second two-ply overlaid panel begins on the inner mid-thigh and extends down the leg. On the below knee and ankle length garment this panel curves to slightly overlap the outer panel at points above and below the knee.

Your submission indicates that the garment’s construction is designed to enhance the wearer ‘s performance in physical activities that place a strain on leg muscles and knees. As further evidence of the garment’s novel construction you have provided copies of three U.S. patents for the design of these garments. The patents indicate that piece construction creates a garment with portions (two-ply overlays) that require relatively high force to stretch and other portions (single-ply) that are easily stretched. The effect is to simulate the taping of muscles and joints.

You believe the subject merchandise should be classified as other sports equipment in HTS 9506.91.0030. To support this you cite the revocation of NY E82612 (HRL 965106 dated 11/21/01) in which buoyancy compensator vests were initially classified as wearing apparel in chapter 62. The vest was describes in the ruling as follows:

The item under consideration is known as a buoyancy compensator. The buoyancy compensator submitted, style ISLA, is a vest constructed of a flexible stretchable material known as BioFlex (U.S. patent #5,403,123). The material is cut, sewn and sealed to form an inflatable bladder that constitutes the vest. The bladder is inflated by a tube which extends from the back top of the vest, down the shoulder harness, to the diver’s front. The diver can either inflate the vest manually, by blowing into the tube, or can inflate the vest by attaching the regulator to the tube. The vest is equipped with a large exhaust valve with a pull cord that releases the air from the vest. On each side of the front of the buoyancy compensator is a pouch with hook and loop closures. The pouches are designed to hold weights that provide negative buoyancy while diving. By inflating and deflating the buoyancy compensator, in conjunction with the weights inserted into the front pockets, the diver is able to control his or her buoyancy throughout all stages of a dive.

The exterior center back of the buoyancy compensator is molded plastic, shaped to cradle the compressed air cylinder. A heavy plate of plastic on the inside of the vest counter balances the weight of the compressed air cylinder when in place in the “cradle.” A heavy strap with hook and loop fasteners secures the cylinder in place. A carry handle allows for easy transportation of the buoyancy compensator and tank.

Clearly the vest described is much more than an item of apparel. It has an inflatable bladder, pockets for weights, tubes for inflating and valves for deflating, straps and a heavy plastic plate. The item is a requisite for the sport of scuba diving.

Another ruling you cite is HRL 083854 which classified a weight vest in subheading 9506. This item was described as:

. . . analogous to ankle and wrist weights which are classifiable in chapter 95. There is little difference between strapping weights to the ankles and wrists and having weights worn on the upper body. The instant vest enables the user to place the weights on the body and hold them in place while exercising.

Once again the item described is more than apparel. In both cases the items are far removed both in design and function from that of an apparel vest. In our opinion the active wear at issue is not similar to either item.

Sports equipment is provided for generally in heading 9506, HTSUSA. However, Note 1(e), Chapter 95, HTSUSA, excludes sports clothing of Chapters 61 and 62, HTSUSA, from the coverage of Chapter 95. Not withstanding, you indicate that the items are designed to provide muscle support and protection by applying a tightening force along critical areas of the body during athletic activities and serve to improve the wearer’s performance. Improvement of muscle tone, stamina and endurance are cited. As a result you assert that the items should be classified a sports equipment.

Although protective equipment is covered by heading 9506, it is Customs' view that the heading embraces only certain forms of protective gear, and that sports clothing, regardless of the protection they afford the wearer, is still excluded. The Explanatory Notes, which constitute the official interpretation of the Harmonized System at the international level, provide at EN 95.06(B)(13), that protective gear of heading 9506 includes such articles as fencing masks and breast plates, elbow and knee pads, cricket pads and shin guards.

The items at issue are not similar to any of the exemplars noted above. The items listed afford protection from impact, usually with additional padding or hard surfaces or a combination of the two. The samples provided are made with soft stretchable fabric and offer no protection from impact. What they do provide is considerable support to the body.

In HRL 957469 we ruled that football compression shorts were classified as a girdle in HTS 6212.20.0020. In that ruling the firm’s catalog description of the item design bears a striking similarity to the claims made for the items before us. The description provided follows:

BIKE's unique two-way knit construction offers steady, uniform pressure and support to the hamstring, groin, abdomen and quadricep muscle groups during the twisting, stretching and pivoting movements, brought about during a game or strenuous exercise program. BIKE COMPRESSION improves circulation and stamina, helps prevent edema after a blow or injury, acts like a second skin to prevent abrasions, and restricts muscle movement in injured muscle groups. Wearing BIKE COMPRESSION also fights fatigue and increases stamina. [emphasis added.]

A close reading of the U.S. patents for these items provides an unambiguous description. The items are identified as wearing articles, garments and girdles. In one patent the word supporter is used more than 35 times.

As an alternative to classification as sports equipment, counsel for the importer proposes that the goods be classified as other made up textile articles in HTS 6307. We find no Legal Notes to Section XI, HTS, which would influence the classification of these goods. The suggested alternative heading, 6307, HTS, provides for other made up textile articles. It is a "basket" heading in that it serves to classify merchandise not provided for more specifically in other headings of the nomenclature. We must first determine whether the merchandise is more specifically in either chapter 61 or 62.

Heading 6212, HTS, provides for, among other things, girdles and similar articles, whether or not knitted or crocheted. 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). The heading includes, inter alia:
(2) Girdles and panty-girdles.

As indicated by the patents, the garments at issue provide support throughout the area of the body they cover. They are called girdles and perform as such.

The applicable subheading for the garments will be 6212.20.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: girdles and panty-girdles. The rate of duty will be 21 percent as valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Brian Burtnik at 646-733-3054.


Robert B. Swierupski

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