OT:RR:CTF:FTM H304008 TSM
Ms. Merle Haarbauer
Jockey International, Inc.
2300 – 60th Street
Kenosha, WI 53140
RE: Affirmation of NY N301815; Classification of a women’s undergarment.
Dear Ms. Haarbauer:
This is in response to your request, dated May 1, 2019, for reconsideration of New York Ruling Letter (“NY”) N301815, issued to you on December 13, 2018. In that ruling, U.S. Customs and Border Protection (“CBP”) found that Style 4137 woman’s knit shapewear underwear tank, imported by Jockey International, Inc., was classified under subheading 6109.90.10, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers.” We have reviewed NY N301815, determined that it is correct and for the reasons set forth below, we affirm NY N301815 because the undergarment article at issue is not “of a kind designed for wear as body-supporting garments,” provided for in heading 6212, HTSUS.
NY N301815 described the garment at issue as follows:
Style 4137 is best described as a woman’s underwear singlet. The close-fitting garment is constructed from 96% nylon, 4% spandex knit fabric for the top and bottom section and 89% nylon, 11% spandex knit fabric for the middle section of the garment. The middle section has a change in knit pattern that begins just below the bust line and ends approximately 3 ½” above the bottom hem. The garment features an elasticized neckline that is u-shaped in the front and scooped in the back, elasticized arm openings, approximately 1 3/4” wide shoulder straps, and a hemmed bottom. In Country A, tubular fabric is knit and dyed. There are no lines of demarcation on the tubular knit panel. In Country B, a paper pattern is used to cut the armholes and neckline, elastic is sewn onto the armholes and neckline, the garment label is applied, and packaging for shipping are done.
CBP ruled that Style 4137 is classified in subheading 6109.90.1065, HTSUS, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of Other textile materials: Of man-made fibers: Women’s or girls’: Tank tops and singlets: Women’s.”
In your request for reconsideration, you claim that Style 4137 should be classified in subheading 6212.90.0030, HTSUS, 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.” You claim that Style 4137 is designed to slim the lower torso, will be sized S-XXL, available in a variety of colors and will be sold in department stores in the intimates department. In your submission, you specifically refer to NY N271103, dated December 14, 2015, which covers Jockey Style 4195, a women’s shapewear tank bodysuit, in support of your position. You state that Style 4195 is part of the same line as Style 4137 and has the same features except the leg openings and crotch. Both styles offer a change in knit pattern below the bust providing shaping to the lower torso. Furthermore, you state that NY N158677, dated May 12, 2011, NY N103598, dated May 28, 2010, and NY N303550, dated April 10, 2019, cover tank/camisole shapewear garments of similar fabric content and features, which were found to be other support garments of subheading 6212.90.0030, HTSUS. Along with your request, you submitted samples of the garment style at issue, which we have examined.
Upon review, we find that Style 4137 features a seamless and lightweight garment, the fiber content of which is 96% nylon and 4% spandex knit fabric for the top and bottom sections, and 89% nylon and 11% spandex knit fabric for the middle section. The hanger collar and hangtag for Style 4137 advertise this style as “Midriff Slimmer seamfree® comfort” and “Smooth & seamfree® design [that] comfortably slims midriff.” The catalog description for Style 4137 also states that the features and benefits of the garment are “Everyday slimming all day confidence” and “Target slimming zones.” Upon inspection of the samples, we found that although the garment at issue has a change in knit pattern in the middle section, it is nevertheless not very compressive. Instead, consistent with the above-referenced hanger collar, hangtag and catalog descriptions, it is meant for everyday slimming that is comfortable to the wearer.
You argue that garment Style 4137 is a body supporting garment of heading 6212, HTSUS, because it is designed to slim the lower torso and is similar to women’s shapewear garments at issue in NY N271103, dated December 14, 2015, NY N158677, dated May 12, 2011, NY N103598, dated May 28, 2010, and NY N303550, dated April 10, 2019. Upon review, we find that the garments at issue in the referenced rulings are different from Style 4137 in that they are significantly more tight fitting. Moreover, the garments at issue in NY N158677 and NY N103598 also provide shaping and support for the bust. Upon review of the samples of Style 4137, we find that it is different from the referenced garments in that it does not provide the same level of support to the wearer’s body in a way that would truly support, shape, or slim the body in a significant way, even in the midriff area. The way the garment is constructed does not produce a tight or supportive fit. Instead, it fits like a regular underwear camisole or underwear tank style garment.
In Victoria’s Secret Direct, LLC v. United States, 908 F. Supp. 2d 1332 (Ct. Int’l Trade 2013) aff’d, 769 F.3d 1102 (Fed. Cir. 2014), the court determined that the essential character and purpose of the exemplars in heading 6212 was determined to be either support of a part of the body or support of a garment. Therefore, the court held that “[i]t is insufficient for classification under heading 6212 that body support merely be among the characteristics or purposes of the garment.” Based on the information provided and review of the samples of Style 4137, we do not find that body support is the essential purpose of this garment. Accordingly, Style 4137 is not classified under heading 6212, HTSUS.
Heading 6109, HTSUS, provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted.” Upon review, we find that garment Style 4137 falls under the category of singlets and tank tops of heading 6109, HTSUS. Specifically, it is classified under subheading 6109.90.10, HTSUS, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers.” See Headquarters Ruling Letter (“HQ”) H288209, dated August 8, 2018 (classifying stretchy camisole-style garments, designed to fit closely to the body and advertised as such that have “advanced shape for lasting comfort” and “will give a wearer a flat tummy and slim waist,” under subheading 6109.90.10, HTSUS).
Accordingly, we affirm NY N301815, dated December 13, 2018, which correctly classified garment Style 4137 under subheading 6109.90.10, HTSUS.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division