CLA-2 RR:CR:TE 965928 TF
William F. Sullivan, Special Services Manager
MSAS Customs Logistics, Inc.
150-16 132nd Avenue
Jamaica, NY 11434
RE: Modification of HQ 952907; Classification of Mix and Match Women’s Swimwear; Tops and Bottoms Imported Together but Separately Packaged in Unequal Quantities of Tops and Bottoms; Classification Based on Condition at the Time of Importation; Classification Based on the Intended Manner of Sale; HQ 962125, dated May 5, 2000; HQ 965497, dated April 6, 2002
Dear Mr. Sullivan:
Pursuant to your classification request, on behalf of your client, New Hampton Inc., concerning certain styles of women’s mix and match swimwear, Customs issued Headquarters Ruling Letter (HQ) 952907, dated January 29, 1993, to your company. This ruling classified the merchandise in subheading 6112.41.0010, HTSUSA, which provides for women's knit swimwear of synthetic fibers, of fabric containing by weight 5 percent or more elastomeric yarn or rubber thread.
Upon review, the Bureau of Customs and Border Protection has determined that this classification is correct, however the analysis applied to reach the classification determination is incorrect. This ruling letter sets forth the correct classification determination based on the articles condition as imported rather than intended manner of sale as represented by the importer.
HQ 952907 is hereby modified for the reasons set forth below.
Pursuant to section 625(c), Tariff Act of 1930, as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993) notice of the proposed modification of HQ 952907, dated January 29, 1993 was published on July 2, 2003, in Vol. 37, No. 27 of the CUSTOMS BULLETIN. No comments were received in response to this notice.
FACTS:
The merchandise at issue consists of women's mix and match knit swimwear. Seven samples were submitted, all composed of 80% nylon and 20% spandex. Style S93-804-24 is a bra top with a hook closure and detachable shoulder straps. Style S93-804-22 is a crop-like garment. Styles S93-804-21 and S93-804-19 are solid (different) colored bikini bottoms with gussets. Style S93-804-23 is a bra top with shoulder straps and strap closures. Style S93-804-20 is a bikini bottom with a waistband and gusset. The seventh sample, lacking a style number, is a crop-like top design. Styles -21, -19 and
-23 match as to fabric and color. The seventh sample matches the multi-colored bottoms -19 and – 20.
You state that the garments are mix and match swimwear that will be packaged separately, but sold at retail as swimsuits. The tops and bottoms will be imported in unequal numbers.
ISSUE:
What is the proper classification of the merchandise within the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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.
Heading 6112, HTSUSA, provides eo nomine for swimwear. The EN to heading 6112 states that the heading includes, “Swimwear (knitted or crocheted one-piece or two-piece bathing costumes, swimming shorts and trunks, whether or not elastic).” The EN to heading 6112 specifically references “one-piece or two-piece bathing costumes.”
The issue in this case is whether the classification of the separately packaged, unequal quantities of mix and match swimwear tops and bottoms is based on the intent of the importer. Part of this issue was previously considered by Customs in Headquarters Ruling Letter (HQ) 965497, dated April 6, 2002, in which separately imported mix and match swimwear was classified in subheading 6112.41.0010, HTSUSA, which provides for women’s swimwear of synthetic fibers, of fabric containing by weight 5 percent or more elastomeric yarn or rubber thread.
With regard to whether the intent of the importer is controlling in classifying swimwear merchandise, we note that in HQ 952907, Customs stated that when sets of garments are not packed together in a manner that clearly identifies them as suits at the time of importation, the classification is based on the bona fide intent of the importer. However, since the issuance of HQ 952907, Customs has revisited this matter in HQ 962125, dated May 5, 2000, and clarified its position by stating that the intent of the importer is irrelevant to the goods’ classification. The condition of the goods as imported is determinative.
In this instance, the unequal quantities of mix and match swimwear tops and bottoms are to be sold as swimsuit sets. The classification of swimwear merchandise was addressed in HQ 965497 dated April 6, 2002, in which Customs considered whether the EN’s specific reference to “one-piece or two-piece bathing costumes” requires that both pieces are imported together. In reaching its determination, Customs ruled that “two-piece bathing costumes”, such as bikinis, are provided for under heading 6112, HTSUSA, as GRI 1 sets. It was also determined that subheading 6112.41, HTSUSA, which provides for “women’s or girls’ swimwear”, is sufficiently broad to encompass one piece of a two-piece bathing costume. Id. Thus, Customs logically concluded that where separately packaged swimwear tops and bottoms are imported in unequal quantities, any “extra” tops or bottoms are also classified as swimwear of heading 6112, HTSUSA. Id.
This ruling serves to apply HQ 962125 to the classification of the unequal quantities of mix and match swimwear tops and bottoms by determining that the merchandise is classifiable (based on its condition as imported) in heading 6112, HTSUSA, which provides for women’s swimwear, so long as the subject merchandise is imported together in the same shipment, coordinated and matched by size, and constructed and designed to be used exclusively or mainly for swimming.
Therefore, to the extent that HQ 952907 relied on the intent of the importer to classify the goods, we find the ruling to be in error and we are striking the reference to the intent of the importer in HQ 952907 as this has no bearing on the classification determination.
In sum, where a shipment contains an equal number of mix and match swimwear tops and bottoms, the goods are classified as swimwear of heading 6112, HTSUSA based on their condition as imported. When imported separately, or when imported without a matching component, the merchandise is also classified as swimwear of heading 6112, HTSUSA. For further details, we refer you to HQ 962125, which is enclosed.
HOLDING:
HQ 952907, dated January 29, 1993, is hereby modified.
An equal number of mix and match swimwear tops and bottoms are classified in subheading 6112.41.0010, HTSUSA, as “women’s…swimwear, of synthetic fibers, of fabric containing by weight 5 percent or more elastomeric yarn or rubber thread.” The applicable general column one rate of duty is 25.1 percent ad valorem and the quota category is 659.
Any component that is imported separately without a matching component is classified in subheading 6112.41.0010, HTSUSA, as “women’s…swimwear, of synthetic fibers, of fabric containing by weight 5 percent or more elastomeric yarn or rubber thread.” The applicable general column one rate of duty is 25.1 percent ad valorem and the quota category is 659.
The designated textile and apparel category may be subdivided into parts. If so, the 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 your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is available now on the CPB website at www.customs.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), your client should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division