CLA-2 RR:CR:TE 965621 JFS
Sandra Liss Friedman, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, N.Y. 10016
RE: Classification of Compression Active Wear; Revocation of NY H88484
Dear Ms. Friedman:
This letter is to inform you that Customs has reconsidered New York Ruling Letter (NY) H88484, dated April 5, 2002, issued to you on behalf of your client, Wacoal America, Inc. (Wacoal), concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of
CW-X™ compression active wear. After review of NY H88484, it has been determined that the classification of the garments in subheading 6212.20.0020, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes NY H88484.
Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NY H88484 was published on September 11, 2002, in the Customs Bulletin, Volume 36, Number 37. As explained in the notice, the period within which to submit comments on this proposal was until October 11, 2002. No comments were received in response to this notice
FACTS:
In NY H88484, Customs classified the instant garments under subheading 6212.20.0020, HTSUSA, 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, Of man-made fibers.” The general column one rate of duty is 21 percent ad valorem, and the quota/visa category number is 649.
You filed a request for reconsideration, arguing that the garments are not girdles and are properly classified in subheading 9506.91.0030, HTSUSA, which provides, in part, for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports . . .: Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof, Other.” The general column one rate of duty is 4.6% ad valorem. There are no quota or visa restraints.
Three lower body garments were submitted for consideration and classification in NY H88484. Style 120805 reaches above the knee, style 120806 reaches below the knee and style 120809 extends to the ankle. The CW-X ™ garments are manufactured from finely knit 80% polyester, 20% spandex fabric. They have an enclosed one-inch highly elasticized waistband with a drawstring that ties on the interior of the waistband. The design of the garments utilizes the use of single-ply fabric with double-ply components. The single-ply fabric is easily stretched, whereas the two-ply fabric requires substantially more force to stretch. The two-ply fabric panels are located in specific areas of the garment, such as along the thigh, around the knees, under the buttocks and along the hamstring. The effect is to simulate the taping of muscles and joints, thereby obviating the need for taping or the use of a brace during physical activity.
The manufacturer obtained three patents on the subject garments. Patent No. 5,367,708, dated November 29, 1994, describes the design and function of the garments as follows:
Wearing article for wearing in pressed relation to human body surface
Abstract
A wearing article with a taping function for wearing on a human body in pressed relation to a surface of the human body, has a heavily-stretchable portion which has an excellent tightening force and is adapted to be held against a required portion of the human body so as to extend generally along muscle fibers over a region from a tendon to a central portion of the muscle. The remainder of the wearing article is defined by an easily-stretchable portion. With this arrangement, by merely wearing this wearing article on the required portion of the body, the heavily-stretchable portion tightens only a required portion of the body to support the central portion of the relevant muscle, thereby easily achieving a taping function.
SUMMARY OF THE INVENTION According to the present invention, there is provided a wearing article with a taping function for wearing on a human body in pressed relation to a surface of the human body, comprising at least one heavily-stretchable portion which has an excellent tightening force and is adapted to be held against a required portion of the human body so as to extend generally along muscle fibers over a region from a tendon to a central portion of the muscle; the remainder of the wearing article being defined by an easily-stretchable portion.
The heavily-stretchable portion is pressed against that portion (e.g. muscle or articulation) of the human body requiring a taping treatment, in such a manner that the heavily-stretchable portion is extended along the muscle fibers over the region from the tendon to the central portion of the muscle. The other portions not requiring such a taping treatment are covered by the easily-stretchable portion. With this construction, the wearing article, when worn on the human body, has the portion applying a high tightening force to the body surface, and the portion applying a low tightening force to the body surface. The former portion applying the high tightening force achieves a localized tightening effect similar to that achieved with a taping treatment, thereby enabling the prevention and remedy of an injury. The wearing article can be provided in the form of a tights for the lower half of the human body, a sock, an overall tights, a limb supporter, a shoulder supporter, a glove and so on. Therefore, upon wearing of this wearing article, even those who are not skillful in taping techniques can obtain an effect similar to that of a taping treatment. The other portion of the integral wearing article except for the taping portion is made of a two-way stretchable material which can stretch longitudinally and transversely, and therefore the taping portion can not be recognized from an external view, and the wearing article can be smoothly worn on the body with a beautiful silhouette.
Patent No. 6,186,970, dated February 13, 2001, states, in part, that:
Protective clothing for regions of lower limb
Abstract
The present invention provides a leg protection garment that is effective for mainly supporting the hamstrings, the muscle of the posterior side of the femoral region among the leg portion. The leg protection garment having a lower half of the body part which has a leg portion of length capable of covering at least the patella region and formed of stretchable fabric, the garment having a portion having a partially strong straining force, the portion having a strong straining force comprising at least a portion having a strong straining force 101 (A) which ranges from an area above the trochanter major to the vicinity 5 of the upper end of the tibia by way of the trochanter major and further the vicinity over the boundary between the musculus biceps femoris and the tractus iliotibialis so as to support the musculus biceps femoris, wherein the portion obliquely crosses the vicinity 4 of the tendon region located below the muscle belly of the musculus biceps femoris without crossing the muscle belly of the musculus biceps femoris.
TECHNICAL FIELD The present invention relates to a leg protection garment. More particularly, it relates to a leg protection garment applied generally in close contact with the surface of the human body and is mainly effective for supporting the hamstrings, namely, the muscles of the posterior side of the femoral region of the leg. BACKGROUND ART Hitherto, various kinds of sports or training activities or the like excessively load muscles of the leg region and often cause disorders in this region. In order to prevent such disorders in muscles, or to support the relevant muscles or bones when disorders occur, a taping treatment or so-called supporter has been employed. However, the above mentioned conventional taping method has a problem, for example, applying the taping treatment requires skill etc. Moreover, the taping treatment inhibits the movement of the muscles to prevent excessive contraction. On the other hand, the supporter, worn over the articulation, also restricts the movement of the articulation, and in turn often indirectly inhibits the movement of muscles. Therefore, both the taping treatment and the supporter restrict the function of muscles and do not provide support for the contraction of muscles. Thus, a leg protection garment having a structure for supporting the specific muscles of the leg by a portion having a strong straining force has been developed (See Publication of Japanese Patent Application (Tokkai Hei) No. 4-343868, (Tokko Hei) No.6-41641, (Tokko Hei) No. 6-51921). These leg protection garments: can be put on easily and adequately by ordinary people; provide a comfortable fit without being painful to a user; have no hygienic problems such as itchy skin due to it becoming stiff; and furthermore support the muscle contraction and help the extended muscle easily recover, thus being effective for reducing muscle fatigue during exercise and exhibiting the effect of promoting the prevention or treatment of specific disorders etc. of the leg. Moreover, the leg protection garment described in the above mentioned official gazettes support the muscles of the medial, lateral and anterior sides of the femoral region, or the muscle below the patella region. Among such muscles, the musculus quadriceps femoris, for example, functions by flexing the articulatio coxae and extending the articulatio genus. However, the articulatio genus becomes unstable when it is in the extended position, so that an impact can easily cause a rupture of the ligament and a fracture in the vicinity of the articulation. Therefore, by supporting the musculus quadriceps femoris, its function can be strengthened and the above mentioned disorders can be prevented.
Wacoal hired three Ph.D.’s to test the effectiveness of the their CW-X™ garments at reducing muscle fatigue during physical activity. You submit that a similar study has been conducted in Japan with favorable results. The hired scientist submitted a research proposal wherein they detail the purpose and methods of their testing. The research proposal, titled The Effect of CW-X Supporting Sportswear on Physiological Responses During Prolonged Running, states, in part, that:
Introduction
. . .
Recently, a specialized support garment has been developed for the purpose of assisting muscular contraction, thereby possibly reducing fatigue during physical activity. If such a device is effective, it may improve performance and/or allow athletes to train harder and maximize their training adaptations.
Purpose
The purpose of this project will be to determine the effect of wearing supporting garments on 1) the physiological responses during a 60 min run at 70% of maximal aerobic capacity, and 2) a short duration, high intensity performance run after the 60-min run. Specifically, a selection of physiological variable known to be markers of energy expenditure and/or fatigue during prolonged submaximal running will be measured with and without the CW-X™ support garment, and a time-to-exhaustion run will be completed at a pace corresponding to 100% maximal aerobic capacity.
Japanese marketing materials depict the garments being worn as outerwear by persons engaged in various sports such as hiking, jogging, biking, skiing and skateboarding. Wacoal has begun marketing the articles to sporting goods stores in the United States. A Wacoal representative submitted a marketing letter to a store specializing in running, which states that:
The specialized fabric in CW-X tights uses a “taping technique” to support muscles, prevent injuries and reduce fatigue. CW-X pants are not traditional tights and definitely not fashion. They are designed to support the body in very specific ways, allowing full natural movement without excessive pressure.
ISSUE:
Are the compression active wear garments with a taping function classified as “other” sports equipment in Chapter 95, HTSUSA, as trousers or shorts in headings 6103 or 6104, HTSUSA, or as “other” support garments in heading 6212, HTSUSA?
LAW AND ANALYSIS
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI’s). 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings). The EN’s facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI’s. While not legally binding, the EN’s represent the considered views of classification experts of the Harmonized System Committee. It has, therefore, been the practice of the Customs Service to follow the terms of the EN’s, when appropriate, when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Several possible headings can be considered for classification of the garments. You argue that the garments should be classified in subheading 9506.91.0030, HTSUSA, as articles and equipment for general physical exercise or athletics. However, Legal Note 1 (e) to Chapter 95 excludes sports clothing of textiles, of chapter 61 or 62 from classification in Chapter 95. Therefore, in order to qualify for classification in Chapter 95, the garments must not be clothing or wearing apparel.
All things worn by humans are not necessarily wearing apparel. See Dynamics Classics, Ltd. v. United States, Slip. Op. 86-105, 10 C.I.T. 666 (Oct. 17, 1986) (plastic suits used for weight reduction inappropriate for wear during exercise or work not wearing apparel); Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D. 2006 (1958) (crash helmets not wearing apparel); Best v. United States, 1 Ct. Cust. Appls. 49, T.D. 31009 (1910) (ear caps for prevention of abnormal ear growth not wearing apparel). “Admiral Craft Equipment developed the standard that items are not considered wearing apparel when the use of those items goes ‘far beyond that of general wearing apparel.’” Daw Industries, Inc. v. United States, 714 F.2d 1140, 1143 (Fed. Cir. 1983). In Daw Industries the Court found that sheaths and socks used exclusively with prostheses do not provide "significantly more, or essentially different," protection than analogous articles of clothing, but merely "differ incrementally.” The Court concluded that while in some cases the differences may become so large that the article is no longer wearing apparel, that was not the case with the sheaths and socks.
In Headquarters Ruling Letter (HQ) 952204, dated April 12, 1993, Customs applied the reasoning relied upon in Daw Industries when considering the classification of a “swim sweater” which is a flotation device that functions as a swimming aid for children. Customs found that while the “swim sweater” provides some protection from the elements and arguably adorns the body, it is used in very specific situations. Customs concluded that the increment in the difference in use and effect between the “swim sweater“ and a conventional sweater is so large that the “swim sweater” is no longer wearing apparel.
Customs recently considered what constitutes wearing apparel in HQ 965312, dated January 14, 2002, wherein Customs concluded that the difference in use and effect between “buoyancy compensators worn by SCUBA divers” and vests are so large, that buoyancy compensators are no longer wearing apparel. Customs reasoned that the entire design of buoyancy compensators is centered around buoyancy control and that while features such as padding provide some warmth and protection, these benefits are ancillary to the function of allowing the diver to control her buoyancy. In contrast, the difference between use and effect between the instant garments and traditional athletic shorts or tights is not great enough that they are no longer considered wearing apparel. Significantly, they are manufactured from Coolmax™ fabric that is specially designed to wick away moisture and to cool the body. Moreover, the garments are designed to be worn as outer wear and are worn as such during athletic activity. The garments are wearing apparel and are excluded from classification in Chapter 95. See also HQ 962072, dated August 12, 1999 (classifying ice-hockey pants with sewn-in protective padding as wearing apparel in Chapter 62, HTSUSA).
The instant garments are constructed from a knit fabric and are therefore classified in Chapter 61. Classification within Chapter 61, HTSUSA, is dependent upon whether the garments are trousers or shorts of headings 6103 or 6104 (depending on whether they are designed for men or women), or whether they are “other” support garment of subheading 6212, HTSUSA, which provides for brassieres, girdles, corsets, and similar articles.
EN (D) to heading 6103, HTSUSA, provides the following definition of trousers:
"Trousers" means garments which envelop each leg separately, covering the knees and usually reaching down to or below the ankles; these garments usually stop at the waist; the presence of braces does not cause these garments to lose the essential character of trousers.
EN (F) to heading 6103, HTUSA defines shorts as “’trousers’ which do not cover the knee.” In that the subject garments “envelope each leg separately” and “stop at the waist,” they generally meet the description of “trousers” and “shorts” that are provided in the EN.
In appearance, the instant garments, in particular the pair that stop above the knee, are similar to bicycle shorts. In HQ 955479, dated March 17, 1994, Customs classified a pair of “Trail Shorts” that were essentially a pair of bicycle shorts inside a pair of hiking shorts, as shorts in subheading 6204.63.3532, HTSUSA. The “Trail Shorts” were described as follows:
The submitted sample, the Trail Short, is a size medium pair of shorts constructed from 100 percent nylon woven fabric. The garment features a knit inner lining which is constructed with elastomeric yarns. It possesses an elasticized waist, an internal drawstring, zippered side-pockets, side vents and a pad or insert sewn at the crotch.
The “Trail Shorts” did not contain any features that would demonstrate that they were designed, or intended, to serve a “support” function. They contained no spandex, they did not have targeted paneled construction, they did not have two-ply construction, and they were marketed as having “all the technical features and performance of a tight.” Customs concluded that the shorts were designed to be multi-functional and with fashion in mind. In contrast, the instant shorts are designed, marketed, and worn, for their support or taping function. While they may be worn as outerwear, their primary purpose is to act as a support garment.
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:
(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.
(5) Suspender-belts, hygienic belts, suspensory bandages, suspender jock-straps, braces, suspender, garters, shirt-sleeve supporting arm-bands and armlets.
(6) Body belts for men (including those combined with underpants).
(7) Maternity, post-pregnancy or similar supporting or corrective belts, not being orthopaedic appliances of heading 90.21 (see Explanatory Note to that heading).
All of the above articles may be furnished with trimmings of various kinds (ribbons, lace, etc.), and may incorporate fittings and accessories of non-textile materials (e.g., metal, rubber, plastics or leather).
* * *
Customs has had occasion to classify articles of wearing apparel, similar to the ones at issue, within heading 6212, HTSUSA. These rulings provide guidance as to what garments Customs considers support garments. In HQ 957940, dated June 30, 1995, Customs classified “baseball slider pants.” The pants were constructed of 72 percent nylon/28 percent spandex knit fabric and had protective pads sewn in place to protect the athlete from abrasion and injury while playing baseball. Customs found that:
Customs believes the difference in fabric composition and construction of the sliding pants at issue imparts a significant feature to the sliding pants that was not present in the garments at issue in HRL 083876 [(classifying knit undergarments with no support function as other baseball equipment in 734.54 Tariff Schedules of the United States)]. It is Customs' view that the tightly knit fabric containing 28 percent spandex causes the subject sliding pants to hold in and support the body. Customs also believes the support offered by the subject garment is an intended feature and not mere happenstance. It may be argued that sliding pants are designed for wear as body-protecting garments, not body-supporting garments. However, Customs believes that the subject sliding pants are designed for both purposes. Without the pads, Customs would view the garment before us as a girdle. With the permanently sewn-in pads, the garment offers support and protection, thus giving it a feature not associated with girdles or other support garments.
Emphasis added. Similarly, in HQ 957469, dated November 7, 1995, Customs considered the classification of compression girdles or shorts for football. The articles were described as:
The submitted compression shorts, style 7648, are made of heavy gauge 92 percent nylon/8 percent spandex knit fabric. The shorts measure 14 inches from the elastic waistband to the bottom of the hemmed leg openings. The fabric of the center front and rear panels is oriented to reduce the lateral stretch and thus provide additional support to the body. You assert that the garment is designed for use as a support garment for wear by players of football and other sports needing protective pads. The garment features three internal pockets into which plastic foam pads may be inserted to protect the hips and tailbone. The pads are sold separately from the garment.
The manufacturer in HQ 957469, BIKE, marketed its compression shorts as 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.
Customs noted that BIKE stressed the support feature of their compression shorts in their marketing catalogues. Customs concluded that without the pads, the compression shorts were girdles classified in heading 6212, HTSUSA.
Like the sliding pants and compression shorts discussed above, the instant garments are designed to support muscles, joints and tendons. The patent materials stress the drawbacks to taping or using a brace when engaged in sporting activity. Namely, that they don’t provide the correct directional support, require a high level of skill to be properly applied, can cause fatigue, and can impede the movement and function of the targeted limb, muscle or joint. The instant garments are designed to alleviate some of the problems encountered with taping and the use of a brace while allowing the limb as a whole to move freely. This functionality is obtained by locating the double-ply non-stretch panels so that they target the muscle, tendon or joint that needs support. Proper application of the support is obtained by wearing the garments, thereby allowing even the casual athlete the ability to properly support a weak body part.
Wacoal has invested substantial resources, as evidenced by the research and patent materials, to ensure that the instant garments act as a replacement to taping or a support brace. In addition to the substantial resources allocated to develop the instant garments, the garments are marketed as providing a taping function that reduces fatigue and prevents injury. This is seen in the marketing materials targeting the Japanese market, as well as the individualized marketing materials sent to store owners in the U.S.
While the instant garments may be worn as outerwear, thereby resembling trousers or shorts, their entire function and design is centered on providing support to muscles, joints, and ligaments of the legs during physical activity. Accordingly, the instant garments are more specifically described by the terms of heading 6212, HTSUSA, than they are by the general provisions for trousers in headings 6103 and 6104, HTSUSA.
At the subheading level, the issue is whether to classify the articles in subheading 6212.20, HTSUSA, the provision for girdles, or in subheading 6212.90, HTSUSA, the provision for “other” support garments. In HQ 957469, discussed above, after dismissing the claim that girdles were “women’s” garments, Customs took note of the fact that the compression shorts were clearly undergarments to be worn under other clothing. Customs stated that:
Neither of these definitions identify girdles as gender specific. All of the definitions, however, indicate that girdles are understood to be undergarments which provide support and hold in the body along the lower torso, specifically including the waist and hips.
After extensive research, Customs is still of the opinion that girdles are understood to be undergarments. See HQ 965236, dated December 5, 2001 (Exemplars to heading 6212, HTSUSA, are generally worn underneath other garments). Furthermore, two of the garments extend below the knees and this is not a common characteristic of girdles. Accordingly, the instant articles are not classified as girdles in subheading 6212.20, HTSUSA. Even though the instant articles can be worn as outerwear, they are principally used and are primarily designed to act as a support garment. Accordingly, the CW-X™ active wear garments are classified in subheading 6212.90.0030, HTSUSA, as “other” support garments.
HOLDING:
NY H88484 is revoked. The CW-X™ active wear, styles 120805, 120806 and 120809, are 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.” The general column one rate of duty is 6.7 percent ad valorem, and the quota/visa category number is 659.
EFFECT ON OTHER RULINGS:
NY H88484, dated April 5, 2002, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division