CLA-2-61:OT:RR:NC:N3:358
Ms. Hayley Birt
Lululemon Athletica
250-1380 Burrard Street
Vancouver, British Columbia
V6Z 2H3
RE: The tariff classification and status under the United States-Peru Trade Promotion Agreement Implementation Act (Peru TPAIA) of a girl’s upper body garment from Peru
Dear Ms. Birt:
In your letter dated August 10, 2016, and received by this office on September 13, 2016, you requested a ruling on the classification and status under the Peru TPAIA of a girl’s upper body garment. A sample of the garment accompanied your letter and will be retained by this office.
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 ? 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.
In your letter, you state that you believe the garment is classifiable as a brassiere under subheading 6212.10.9010, Harmonized Tariff Schedule of the United States (HTSUS). We disagree.
Heading 6212, HTSUS, provides for brassieres and other body supporting garments. We recognize that although this garment resembles a bra in appearance, the basic prerequisite for classification as a brassiere has not been met. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. The Explanatory Notes to heading 6212, HTSUS, state brassieres must be “designed for wear as body-supporting garments.” The article at issue is marketed to 6-12 year old girls. It is our opinion, given the age range to which the item is marketed, the essential characteristic and purpose is not to support a part of the body or another garment, as is required by an article classified in heading 6212, but is primarily intended to provide coverage for modesty purposes. Therefore, classification under heading 6212, HTSUS, is precluded.
Heading 6109 provides for knitted T-shirts, singlets, tank tops and similar garments. The Explanatory Notes to heading 6109, HTSUS, include "singlets and other vests" among the types of garments classifiable within this section of the nomenclature. We note that the word "vest" is synonymous with "underwear" and is a term more commonly used in the British vernacular. The garment at issue is similar to an undershirt in that it is designed to be worn under outerwear, on the upper portion of the body. Thus, heading 6109, HTSUS, by its terms, encompasses this article.
The applicable tariff provision for style IG2279S will be 6109.10.0037, HTSUS, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton: Women’s or girls’: Underwear.” The general rate of duty will be 16.5 percent ad valorem.
You also requested the status of this garment under the Peru TPAIA. The manufacturing operations are as follows:
Cotton/spandex yarn is made in Peru of cotton from Peru and spandex from the U.S.
The finely 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 United States.
General Note 32, HTSUS, sets forth the criteria for determining whether a good is originating under the PERU TPAIA. General Note 32(b), HTSUS, (19 U.S.C. §1202) states, in pertinent part, that
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—
(i) the good is a good wholly obtained or produced entirely in the territory of Peru, the United States, or both;
(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
(B) the good otherwise satisfies any applicable regional value content or other requirements specified in subdivision (n) of this note;
and the good satisfies all other applicable requirements of this note; or
(iii) the good was produced entirely in the territory of Peru, the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note.
As the garment at issue contains non-originating material, it is appropriate to look to GN 32(b)(ii)(A). The applicable tariff shift rule for an item classified in subheading 6109.10 is:
20. A change to headings 6105 through 6111 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310 through 5311, 5401 through 5402, subheading 5403.20, 5403.33 through 5403.39, 5403.42 through 5403.49, headings 5404 through 5408, 5508 through 5516 or 6001 through 6006, 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.
Also of relevance are GN 32(n), Chapter 61, chapter rule 3 which requires that goods of the chapter containing fabrics of heading 6002 or subheading 5806.20 be considered originating only if such fabrics are both formed from yarn and finished in the territory of Peru, the United States or both; and chapter rule 4, which requires that goods of the chapter containing sewing thread of heading 5204 or 5401 be considered originating only if such sewing thread is both formed and finished in Peru, the United States, or both. In this case, while the garment meets the tariff shift rule and the two types of sewing thread are formed and finished in Peru, the woven elastic shoulder strap component of subheading 5806.20 is formed in China. Therefore, the use of the narrow woven elastomeric fabric renders style IG2279S ineligible for preferential treatment under Peru TPAIA.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/current.
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 Kim Wachtel at [email protected].
Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, U.S. Customs and Border Protection, Regulations & Rulings, 90 K Street N.E. – 10th floor, Washington, DC 20229-1177.
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division