CLA 2: RR:CR:TE 962125 SS
Gail T. Cumins, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004
RE: Request for Binding Ruling; Women’s Suit-type Jacket and Matching Trousers; Women’s Suit-type Jacket and Matching Skirt; Imported in Equal Numbers; Separately Packaged; Classification Based on Condition at the Time of Importation; Subheading 6204.13.2010, HTSUSA; Not Separates; Not Subheading 6204.35.5010, HTSUSA, Subheading 6204.53.3010, HTSUSA, and Subheading 6204.63.3510, HTSUSA; Classification Not Based on Intent of Importer
Dear Ms. Cumins:
This is in response to your request on behalf of your client, Kasper A.L.S., Ltd., dated July 20, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a women’s suit-type jacket and matching trousers and another women’s suit-type jacket and matching skirt. A sample of each garment was provided with the request. We note that an additional submission was made on November 2, 1999. We also note that a meeting was held with counsel and a representative of Kasper, A.L.S., Ltd., on April 4, 2000.
FACTS:
Two samples, style 40398 consisting of a jacket and skirt and style 40399 consisting of a jacket and trousers, were submitted. The garments will be made in China from 100 percent polyester woven fabric. The jackets of both styles are made from four or more panels sewn together lengthwise. The jacket of style 40398 features a full front opening secured by three button closures, long sleeves without cuffs, lapels, and pockets below the waist. The skirt of style 40398 features a rear button and zipper closure. The jacket of style 40399 is double-breasted and features peaked lapels, long sleeves with cuffs, and pockets below the waist. The trousers of style 40399 feature front pleats, simulated side pockets and a front fly secured by a zipper. All of the garments are lined and are made from identical fabric.
The inquirer states that the merchandise will be imported in equal quantities of jackets and trousers or skirts, in the same size ranges, but will be separately packed. After importation the garments will be offered and sold at both the wholesale and retail levels as separate garments to provide the consumer the opportunity to mix and match blazers and bottoms to meet the consumers needs. Each component will have its own purchase price. The importer states that it does not intend to sell the garments as suits.
ISSUE: Whether the instant garments are classifiable as women’s suits under subheading 6204.13.2010, HTSUSA, or as separates under subheadings 6204.33.5010 (women’s woven suit-type jackets of synthetic fibers), 6204.53.3010 (women’s woven skirts of synthetic fibers) and 6304.63.3510(women’s woven trousers of synthetic fibers), HTSUSA?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
The term “suit” is defined by Note 3(a) to Chapter 62, HTSUSA, as a set of garments composed of two or three pieces made up of identical fabric and which are comprised of one of a number of specially named types of garments designed to cover the lower part of the body, and a suit coat or jacket, the outer shell of which, exclusive of sleeves, consists of four or more panels. All the components of a suit must be of the same fabric construction, style, color and composition, and must be of corresponding or compatible size. There is no question that the garments at issue meet the “suit” definition as set forth in Note 3(a).
Suits are an eo nomine provision and are specifically defined as single units comprised of two or three components. Accordingly, suits are classifiable under General Rule of Interpretation (GRI) 1, HTSUSA, which provides that classification will be determined according to the terms of the headings and any pertinent legal notes. This is in contrast to sets of goods which must be classified according to GRI 3(b), HTSUSA, which specifically requires that in order for those sets to be classifiable under a single tariff heading, the sets must be “put up for retail sale.” Since suits are classifiable pursuant to GRI 1, they are not subject to the GRI 3(b) requirements. Furthermore, Note 3(a) to Chapter 62 does not require that the garments be put up for retail sale. Therefore, suits are not required to be packed together at the time of importation. Although the suit components need to be in the same shipment, they do not need to be on the same hanger or even in the same container in order to be classifiable together under the suit provision. See Headquarters Memorandum 085944 PR, dated May 10, 1991; Headquarters Ruling Letter (HQ) 088423, dated May 20, 1991; HQ 952584, dated December 8, 1992; HQ 952907, dated January 29, 1993; HQ 952704, dated February 1, 1993; HQ 953231, dated May 12, 1993; HQ 954270, dated August 17, 1993; HQ 955519, dated April 15, 1994; HQ 956298, dated March 9, 1995.
It is a cardinal rule of Customs law that goods are classified according to their condition at the time of importation. However, the sale of separates has blurred the distinction between “suits” and distinct jackets and trousers (or skirts). In importing separately packaged jackets and matching trousers (or skirts), Customs is faced with the formidable task of determining whether the garments are suits or separates.
In 1991, Customs stated that when sets of garments were not packed together in such a manner that they were readily identifiable as suits at the time of importation, the classification of those garments depended on the intent of the importer. See Headquarters Memorandum 085944 PR, HQ 088423, HQ 952584, HQ 952907, HQ 952704, HQ 953231, HQ 954270, HQ 955519, and HQ 956298 (cited above). In 085944 PR (cited above), Customs explained:
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 suit components separately, as evidenced by the documentation in the entry package, in the absence of evidence to the contrary, the garments are classifiable separately.
However, after nearly a decade of struggling to apply such a standard, Customs now finds that classification based simply on condition as imported presents a more legally justifiable approach.
The importer characterizes the issue in this case as “condition as imported” versus “intent of the importer” and argues that we must look to the condition as imported and find that the garments meet the definition of suits. We agree. However, we wish to point out as we did in HQ 955519 (cited above) that by examining the intent of the importer Customs was merely attempting to ascertain the "condition as imported" of the merchandise at issue. At no time did Customs abandon the principal of classification based upon condition as imported. Unfortunately, it appears that by adding an examination of the “intent of the importer” Customs only created more confusion.
It also allowed shipments of identical merchandise to be classified differently, depending on the intent of the importer. This is in direct conflict with Additional U.S. Rule of Interpretation 1(a) which provides:
* * *
[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the uses in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is principal use
* * *
This ruling serves to clarify that when matching suit jackets and bottoms which meet the chapter note definition of suits are imported in the same shipment, in equal numbers and in the same size range, the garments are to be classified as suits based on condition as imported. The intent of the importer is not determinative of classification.
Customs located two rulings in which Customs appeared to consider the intent of the importer in classifying women’s suits. In New York Ruling Letter (NY) A87564, dated October 10, 1996, Customs classified a women’s jacket and shorts packaged separately at the time of importation as a suit. Additionally, in NY B83511, dated April 23, 1997, Customs classified a women’s jacket and skirt packaged separately at the time of importation as a suit. Since the garments met the tariff definition for suits and the shipments were of an equal number of tops and bottoms and in corresponding size scales, we find that classification as suits was proper in each ruling. However, to the extent that the rulings addressed the intent of the importer, we find the ruling to be in error. The arguments that the garments were individually ticketed and priced so that they could be purchased in separate sizes to achieve optimal fit and that the garments were primarily sold and worn as a unit are irrelevant for classification purposes. The garments meet the tariff definition of suits and, when imported together in equal quantities, matched by size and color, are classified as suits. Accordingly, please be advised that these rulings are being modified to conform with the reasoning set forth in this ruling letter.
The lack of uniformity in classification resulting from consideration of the intent of the importer is evident from a line of rulings on track suits. In HQ 088423, dated May 20, 1991, Customs classified track suit components imported in equal quantities but packaged separately at the time of import as track suits. Customs found that the importer intended to sell the garments as tracksuits based on the importer’s reference to the garments as “track suits,” the fact that the purchase orders were for equal numbers of tops and bottoms and the importer’s statement that the garments were sold as track suits. In contrast, in HQ 952704, dated February 1, 1993, Customs classified jackets and trousers which met the tariff requirements for classification as track suits as separates. Customs classified the garments as separates merely because the importer submitted that the garments, which had previously been classified as track suits, were now being packed, shipped and sold as separates. Furthermore, in HQ 953231, dated May 12, 1993, Customs classified equal numbers of separately packaged jackets and trousers as separates despite the importer’s claim that the garments were intended to be sold as tracksuits. Customs pointed to a catalog which showed separate prices for the components and stated that a track suit should be tagged and priced as a set and not as individual components. Since the garments in all three rulings met the tariff definition for track suits and the shipments were of an equal numbers, the garments should have been classified as track suits. Additionally, since all three rulings addressed the intent of the importer, we find the rulings to be in error. Please be advised that Customs is in the process of modifying or revoking the rulings to conform to the reasoning set forth in this ruling letter.
HQ 955519, dated April 15, 1994, involved one entry with 200 track suit jackets and 1576 track suit pants. The importer submitted that the merchandise was ordered, purchased and sold as track suits and should thus be classified as track suits. Customs, however, classified the garments separately reasoning that the highly disparate number of jackets and pants weighed against a finding that the garments should be classified as tracksuits. Also, the importer had previously obtained a pre-classification ruling stating that the garments were to be sold separately and had in fact imported several shipments as separate jackets and pants. In HQ 956298, dated March 9, 1995, Customs classified a shipment of 2880 track suit pants and 5040 track suit jackets as separates. Customs stated that the only evidence that the garments were track suits was the importer’s claim that 2880 tops and bottoms were intended to be sold as track suits. It is now Customs belief that the garments meeting the requirements of the tariff definition should have been classified as track suits with the additional pieces being classified as separates. Furthermore, to the extent that the rulings reference “intent of the importer,” please be advised that the rulings are being modified to conform to the reasoning set forth in this ruling letter.
In HQ 954270, dated August 17, 1993, Customs precluded classification of garments as track suits due to water resistant coating. However, in dicta, Customs stated:
In C.S.D. 92-11, Customs concluded that components of a set need not be packaged together at time of entry in order to be considered classifiable as a set, but all garments must be present in the entry and there must be an equal amount of components to make up the set in the shipment. Therefore, if the instant goods contained the general characteristics of a track suit and were not coated, the classification outcome would be as follows: if the goods were shipped separately on different vessels, they would not be classifiable as a set; if the instant goods were shipped on the same vessel, listed on the entry, and not packaged as a set, with an equal amount of trousers and jackets, they would be classifiable as a set; and, if the instant goods were shipped on the same vessel, listed on the entry, packaged separately, with an unequal amount of trousers and jackets, the extra components would be classifiable as separates. This rationale is premised on the fact that the EN require two garments to make up a track suit. Therefore, in the case of unequal shipments, the extra components are classifiable separately because it takes two components to make a track suit. In the case of shipments of one component, the lone component is not classifiable as a track suit.
Customs finds that such analysis, which lacks any reference to the importer’s intent, is the correct analysis and should also be followed in the case of suit components.
We note that this ruling is consistent with the line of rulings on pajamas. According to the pajama rulings, if there are an equal number of matching tops and bottoms packaged separately in a shipment, the garments will be classified as pajamas. See HQ 956492, dated September 19, 1994; HQ 956202, dated September 29, 1994; HQ 957004, dated November 23, 1994; HQ 957134, dated April 4, 1995; HQ 957757, dated April 11, 1995; HQ 957760, dated April 17, 1995; HQ 960431, dated August 4, 1997; HQ 960523, dated August 8, 1997; and HQ 960432, dated August 22, 1997. Even if pajama tops and bottoms in the same shipment are priced separately, the garments are classified together as pajamas. See HQ 957134 and HQ 956202 (cited above). Applying this rationale to the subject merchandise, we find that shipments of equal numbers of matching suit jackets and bottoms which meet the tariff definition for suits should be classified as suits. Evidence of an importer’s intent, such as separate invoices, separate style numbers, separate tickets or separate prices, is not determinative of classification.
Customs located two rulings classifying swimsuit components imported in separate packaging based on the principal of “intent of the importer.” See HQ 952584, dated December 8, 1992, and HQ 952907, dated January 1, 1993. However, Customs is in the process of revoking and/or modifying those rulings to state that the intent of the importer was not determinative of classification. Customs will clarify that classification of the garments is based on condition at the time of import.
The importer’s assertion that the instant garments are intended to be sold as separates is irrelevant. The subject garments meet the chapter note definition of suits and, despite their separate packaging, each shipment will contain equal numbers of matching jackets and pants or skirt. Customs declines to impose additional qualifications for classification as suits. Accordingly, the instant garments are classifiable as suits. This decision is founded on the chapter note definition of suits, U.S. Additional Rule of Interpretation 1(a), and the precept that classification is based on the condition at the time of import.
HOLDING:
Style 40399 and Style 40398 are classifiable under subheading 6204.13.2010, HTSUSA, which provides for “[w]omen’s or girls suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Suits: Of synthetic fibers: Other, Women’s.” The general column one duty rate is 36.2 cents per kilogram plus 26.5 percent ad valorem and the quota category is 644.
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 renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restrain Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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 applicable to textile
merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division