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HQ 952584


December 8, 1992

CLA-2 CO:R:C:T 952584 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6112.41.0010

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

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