CLA-2 OT:RR:CTF:TCM H282945 GaK
TARIFF NO: 6212.10.90
Andre LaMorgia
Cardinal Trade Associates
601 Walnut St. 12th Floor
Philadelphia, PA 19106
RE: Revocation of NY N279310; Classification of a girl’s upper body garment from Peru; Eligibility of garments for preferential tariff treatment under the United States-Peru Trade Promotion Agreement
Dear Mr. LaMorgia:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N279310, which was issued to Lululemon Athletica on October 13, 2016. In NY N279310, CBP classified a girl’s upper body garment from Peru (“merchandise”) under subheading 6109.10.00, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for: “[t]-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton.” NY N279310 also denied preferential tariff treatment to the merchandise under the United States-Peru Trade Promotion Agreement (“PETPA”). We have reviewed NY N279310 and found it to be incorrect. For the reasons set forth below, we are revoking this ruling.
On January 10, 2018, 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, notice of the proposed action was published in the Customs Bulletin Vol. 52, No. 2. No comments were received in response to this notice.
FACTS:
In NY N279310, the merchandise was described as follows:
The submitted sample, style IG2279S, which you describe as a “girls’ sports bra,” is a girl’s size 7, abbreviated upper body garment intended to be worn under clothing. The garment is constructed from 92 percent cotton and 8 percent spandex finely knit jersey fabric. The garment features double layered back panels and triple layered front panels with openings at the inside side seams to accommodate cup inserts between the inside and middle layers at the discretion of the wearer. The cup inserts are not imported with the garment. A 3/8 inch covered elastic band is sewn into the bottom hem and a clear elastic tape is sewn into the neckline and the binding used to finish the top back edge and armholes. The garment has shoulder straps, 1 centimeter in width, formed from the extension of the self-fabric binding around the armholes; and 88 percent nylon and 12 percent spandex woven elastic adjustable straps. The plastic connectors between the strap components on each side allow for clipping the straps together to allow the wearer to create a racer-back effect. The garment will be imported in girls’ sizes 6 – 14 and marketed to 6 – 12 year old girls.
The manufacturing process is as follows:
Cotton/spandex yarn is made in Peru of cotton from Peru and spandex from the U.S.
The fine knit jersey fabric is knit in Peru.
Two types of sewing thread are used; both formed and finished in Peru.
Plastic connectors and sliders to adjust the straps are manufactured in Austria.
Silicon tape in the neckline and armholes is made in Peru.
Woven elastic strap component, care label and heat transfer logo are made in China.
Rubber tape in bottom hem is made in Italy.
Garment is cut and sewn in Peru.
Finished garment is exported from Peru to the U.S.
ISSUES:
Whether the merchandise is classified as “[t]-shirts, singlets, tank tops and similar garments, knitted or crocheted,” under heading 6109, HTSUS, or as “[b]rassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted,” under heading 6212, HTSUS.
Whether the merchandise qualifies for preferential tariff treatment under the PETPA.
LAW AND ANALYSIS:
I. Tariff Classification
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings at issue are as follows:
6109 T-shirts, singlets, tank tops and similar garments, knitted or crocheted:
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6212 Brassiers, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted:
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 62.12 provides as follows:
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).
In NY N279310, CBP concluded that while the garment resembles a bra in appearance, it does not meet the basic prerequisite for classification as a brassiere as provided in EN 62.12. CBP stated that given the age range to which the garment is marketed, the essential characteristic and purpose is not to support a part of the body or another garment, as required by an article classified in heading 6212, HTSUS, but primarily intended to provide coverage for modesty purposes.
CBP has previously addressed the classification of upper body garments available in girls’ sizes in NY L80873, dated November 23, 2004; NY J83918, dated May 7, 2003; and NY B87810, dated July 25, 1997. In NY L80873, CBP classified a girls’ bralet featuring elasticized shoulder straps, elasticized capping at the garment top, side seams, and a fabric covering ½-inch wide elasticized bottom band under heading 6212, HTSUS. In NY J83918, CBP classified a girls’ soft bra featuring shoulder straps measuring approximately ¼-inch wide, side seams, and a fabric covered elasticized bottom band measuring approximately ¾-inch wide under heading 6212, HTSUS. In NY B87810, CBP classified a girls’ bra featuring adjustable elasticized straps, a single hook and eye back closure and an elasticized band bottom under heading 6212, HTSUS.
We note that neither the ENs nor the HTSUS makes reference to the age of the wearer for brassieres. CBP’s Informed Compliance Publication, titled, “Classification: Apparel Terminology under the HTSUS” (published in June 2008), states that brassieres classified under heading 6212, HTSUS, are “garments worn to mold and/or support the breasts.” Several studies have been conducted on breast development and early puberty for girls. The median at onset of breast development was found to be 8.8 years old and studies have shown that 14 percent of girls are showing breast development by the age of eight. In addition, retail companies that sell clothing for pre-teens (ages 7-14) also carry bras that are marketed as body supporting for girls. As the instant garment is worn for these purposes, the merchandise at issue is properly classified in heading 6212, HTSUS, specifically, subheading 6212.10.90, HTSUS, which provides for “[b]rassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other”
II. PETPA Eligibility
The U.S.-Peru Trade Promotion Agreement Implementation Act, Public Law 110-138, 121 Stat. 1455 (19 U.S.C. § 3805 note) is implemented in the HTSUS at General Note (“GN”) 32.
GN 32(b) provides in relevant part:
For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, a good imported into the customs territory of the United States is eligible for treatment as an originating good under the terms of this note if -
* * *
(ii) the good was produced entirely in the territory of Peru, the United States, or both, and-
(A) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (n) of this note; or
* * *
and the good satisfies all other applicable requirements of this note.
* * *
As the garment at issue contains non-originating material, it is appropriate to look to GN 32(b)(ii)(A). As the garment is classified in subheading 6212.10.90, HTSUS, the applicable tariff shift rule in GN 32(n) is:
Chapter 62/29. A change to subheading 6212.10 from any other chapter, provided that the good is cut or knit to shape, or both and sewn or otherwise assembled in the territory of Peru, the United States, or both.
The non-originating plastic connectors and sliders are classified in heading 3926, HTSUS, the woven elastic strap component is classified in heading 5806, HTSUS, and rubber tape in bottom hem is classified in heading 4008, HTSUS. Since none of the non-originating materials are classified in Chapter 62, HTSUS, and the garment is cut and sewn in Peru, the garment qualifies for preferential tariff treatment under the PETPA.
HOLDING:
Under the authority of GRI 1, the girl’s upper body garment is provided for in heading 6212, HTSUS, specifically in subheading 6212.10.90, HTSUS, which provides for, “[b]rassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other.” The 2017 column one general rate of duty is 2.7% ad valorem.
The girl’s upper body garment qualifies for preferential tariff treatment under the PETPA.
EFFECT ON OTHER RULINGS:
NY N279310, dated October 13, 2016, is hereby REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division