CLA-2-61:OT:RR:NC:TA:361
Irina Parker
Avon Products Inc.
1251 Avenue of the Americas
New York, NY 10020-1196
RE: The tariff classification of a woman’s top in a plastic cone from China
Dear Ms Parker:
In your letter dated August 28, 2007 you requested a classification ruling.
The submitted sample, Style PP1075702 Women’s Sweet Cami in a Cone, consists of a top packaged in a plastic container. The camisole styled top is constructed from 95 percent cotton and 5 percent spandex knit fabric. It features a U shaped neckline in front, adjustable elasticized shoulder straps and a hemmed bottom. The upper back of the garment extends straight across from side seam to side seam, exposing the upper half of the back. The top is packaged in a plastic container. The plastic container measures approximately seven inches and features a design which is similar to an ice cream cone.
You suggest classification of the top under HTSUS 6109.10.0060 as a tank top. Because the garment has insufficient back coverage it is excluded from classification under heading 6109.
You have indicated that the cami top packed in the plastic container will be imported and sold as a unit. The plastic container is not specifically shaped or fitted to contain the cami top.
We must determine whether the container is classified separately or with its contents. GRI 5, HTS, which covers cases, containers and packing materials, reads as follows: (a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character; (b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use. GRI 5(a) does not apply to the submitted container because it is not specially shaped or fitted to contain the top. GRI 5(b) applies if the container is found not to be suitable for repetitive use. Your submission states that the top is packaged in a re-useable plastic container. The plastic container, although of a novelty design, is of a type ordinarily discarded after the contents are removed. The container is not of a design that is suitable for use other than as packaging. Therefore, your suggestion for classification under HTS 3926.90.9980 is not applicable. The instant container is not suitable for repetitive use as required by GRI 5(b); therefore the container is classified with its contents pursuant to GRI 5(b).
We are returning your samples as requested.
The applicable subheading for Style PP1075702 will be 6114.20.0010, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Other garments, knitted or crocheted: Of cotton: Tops: Women’s. The duty rate will be 10.8% ad valorem. The textile category designation is 339.
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 World Wide Web at http://www.usitc.gov/tata/hts/.
With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise, which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.
Section 402(b) (1) (A) of the TAA requires that an addition to the price actually paid or payable be made for "the packing costs incurred by the buyer with respect to the imported merchandise." Section 402 (h)(3) of the TAA defines packing costs as "the cost of all containers and coverings of whatever nature and of packing, whether for labor or materials, used in placing merchandise in condition, packed ready for shipment to the United States." Accordingly, the cost of the containers should be added to the price actually paid or payable.
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 Peggy Fitzgerald at 646-733-3052.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division