CLA-2 CO:R:C:T 952584 jb
James F. O'Hara, Esquire
Stein Shostak Shostak & O'Hara
3580 Wilshire Boulevard
Los Angeles, CA 90010-2597
RE: Women's swimwear; classification based on bona fide
intention of the importer at time of importation to sell
components as a complete suit; 6112.41.0010, HTSUSA
Dear Mr. O'Hara:
This is in response to your letter dated August 10, 1992, on
behalf of your client, Krystal K. International Inc., regarding
the classification of women's swimsuits. Samples were provided
to this office and will be returned under separate cover.
FACTS:
The subject swimwear are two-piece bikini swimsuits composed
of 83 percent nylon and 17 percent spandex knit fabric. The
outer shell of one piece is either the same color and pattern, or
of a coordinated color and pattern, as a matching second piece.
The swimsuits will be imported with the tops and bottoms
separately packaged, but in identical quantities of coordinated
tops and bottoms which will be sold as sets.
The three sample bottom pieces, designated with a (B) in the
model number, are composed of knit nylon and spandex with a
polyester lined front panel and crotch. The three sample top
pieces, designated with a (T) in the model number, are also
composed of nylon and spandex and have a front panel which covers
the bosom. All are secured in the back with a one-inch square,
clear, plastic fastener.
The three sample sets are as follows:
1. Model LS(B)000 and Model LS(T)000
the top is fashioned in a bandeau style
2. Model LS(B)001 and Model LS(T)001
the bottom piece is decorated with a ruffled panel of
nylon and spandex; the top piece is a short crop tank-
top style with lace-up detailing in the front
3. Model LS(B)002 and Model LS(T)002
the top is fashioned in a bandeau style
ISSUE:
Whether the submitted samples, which will be imported in
identical quantities of separately packaged tops and bottoms of
the same color or pattern coordinated, and sold as sets, are
properly classifiable as women's swimwear,in subheading
6112.41.0010, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
according to the General Rules of Interpretation (GRI). GRI 1
requires that classification be determined according to the terms
of the headings and any relative section or chapter notes, taken
in order. Where goods cannot be classified solely on the basis
of GRI 1, the remaining GRI will be applied in the order of their
appearance.
At issue is whether this merchandise, upon entering the
United States, is to be classified based upon its condition as
imported, i.e., either by separate packaging of the top and
bottom pieces, or based upon the way in which it is to be put up
for retail sale to the consumer, i.e., as a bikini set.
A similar issue was discussed in Customs Memorandum 085944,
dated May 10, 1991, therein it was determined that:
As a result, whether sets of garments which are not packed
together in such a manner that they are readily identifiable
as suits at the time of importation are classifiable as such
depends on the intent of the importer. If, at the time of
importation, the importer has the bona fide intention to
sell the suit components as suits, as evidenced by the
documentation in the entry package, then the merchandise, in
the absence of evidence to the contrary, is classifiable as
suits. If, at the time of importation, the importer has the
bona fide intention to sell the garment components
separately, as evidenced by the documentation in the entry
package, in the absence of evidence to the contrary, the
garments are classifiable separately.
See also, HQ 088423, dated May 20, 1991.
The importer states that the separate packaging of the
matching components enhances the marketability of the bathing
suits, enabling the consumer to purchase the best fitting
swimwear by selecting different sizes for the bikini top and
bottom, as required. This statement serves to show the bona fide
intention of the importer to sell the separately packaged
components as sets, allowing the consumer to personally select
the top and bottom combinations which will give the ideal fit.
Based upon this bona fide intent of the importer and the cited
rulings, the merchandise is classified in subheading
6112.41.0010, HTSUSA, under the provision for women's swimwear.
HOLDING:
Assuming the requisite evidence of a bona fide intention to
sell the merchandise as sets is present at the time of
importation, the three sample sets, Model LS(B)000 and LS(T)000,
Model LS(B)001 and LS(T)001, and Model LS(B)002 and LS(T)002, are
classified under subheading 6112.41.0010, HTSUSA, which provides
for women's knit swimwear of synthetic fabric containing by
weight 5 percent or more elastomeric yarn or rubber thread. The
applicable rate of duty is 26.5 percent ad valorem and the
textile category is 659.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent negotiations and
changes, to obtain the most current information available, we
suggest your client check, close to the time of shipment, the
Status Report On Current Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client should check the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints of
requirements.
Sincerely,
John Durant, Director