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HQ 965497




April 5, 2002

CLA-2 RR:CR:TE 965497 ss

CATEGORY: CLASSIFICATION

TARIFF NO.: 6112.41.0010

Port Director
U.S. Customs
555 Battery Street
San Francisco, CA 94111

RE: Request for Internal Advice 26/99; Classification of Swimwear Tops and Bottoms Imported in Separate Shipments; Women’s Swimwear; Subheading 6112.41.00, HTSUSA

Dear Madam:

This ruling is in response to your Request for Internal Advice regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of women’s knit swimwear tops and bottoms that are imported in separate shipments. Although the Request for Internal Advice did not identify an internal advice applicant, it is our understanding that Sharretts, Paley, Carter & Blauvelt, P.C., on behalf of Authentic Fitness, requested that the same issue be referred to Headquarters for internal advice.

FACTS:

The subject merchandise consists of three styles of women’s swimwear tops (referenced style number 95232W8, 95239Y8 and 95231X8) and two styles of coordinating swimwear bottoms (styles 95235V8 and 95239V8). Each style is composed of 95 percent nylon and 5 percent spandex knit fabric.

Style 95232W8 is a string bikini top with padded cups, attached straps, an elasticized bottom and an elasticized hooked back closure.

Style 95230Y8 is a fuller coverage bikini top with underwire padded cups, shoulder straps and an elasticized hooked back closure.

Style 95231X8 is a bikini top with lined cups, side stays, one inch shoulder straps that tie around the wearer’s neck and a hooked back closure.

Style 95235V8 is a high cut bikini bottom with a partial liner and an elasticized waist.

Style 95239V8 is a high waist bikini bottom with a partial liner and a waistband of a contrasting color.

Counsel for Authentic Fitness states that the garments are mix and match swimwear which will be imported separately but sold and purchased as swimwear sets. The decision to sell swimwear tops and bottoms separately is a business decision designed to respond to the consumer’s growing desire to mix and match style, print and color when buying two piece swimsuits. Selling the tops and bottoms separately allows a woman to buy the ideal two piece bikini for her shape (e.g. full coverage top with a more revealing bottom or vice versa). Additionally, counsel states that when Authentic Fitness imports the swimwear, its bona fide intent is to sell them as sets, while also allowing the consumer to mix and match the tops and bottoms.

ISSUE:

What is the proper classification for swimwear tops and bottoms when imported separately?

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 (GRI). 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

In earlier rulings, 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 bona fide intent of the importer. Headquarters Ruling Letter (HQ) 952584, dated December 8, 1992, and HQ 952907, dated January 29, 1993. However, the cited rulings involved shipments of swimwear tops and bottoms imported in the same shipment but packaged separately which is distinguishable from the instant situation where swimwear tops and bottoms are imported in separate shipments. Obviously, classification as a set is not an issue when the tops and bottoms are shipped separately. Furthermore, Customs has recently stated that classification based simply on the condition as imported rather than the “bona fide intention of the importer” presents the proper approach. HQ 962125, dated May 5, 2000.

Heading 6112, HTSUSA, provides for, among other things, swimwear. The EN to heading 6112 state that the heading includes, “Swimwear (knitted or crocheted one-piece or two-piece bathing costumes, swimming shorts and trunks, whether or not elastic)”. Since the EN specifically references “one-piece or two-piece bathing costumes,” the issue presented in this case is whether or not both pieces of a “two-piece bathing costume” must be imported together in order to be classified as swimwear. In other words, Customs must determine whether or not bikini tops or bottoms, when imported separately, are still considered swimwear of heading 6112, HTSUSA.

It is Customs belief that “two-piece bathing costumes”, such as bikinis, are provided for under heading 6112, HTSUSA, as GRI 1 sets. Customs also believes that subheading 6112.41, HTSUSA, which provides generally for “women’s or girls’ swimwear”, and not just “two-piece bathing costumes”, is sufficiently broad to encompass one piece of a two-piece bathing costume.

Customs has stated in numerous rulings that separately packaged swimwear tops and bottoms imported in equal quantities are classified as swimwear of heading 6112, HTSUSA. See HQ 952584, dated December 8, 1992; New York Ruling Letter (NY) F81196, dated January 6, 2000; NY F81195, dated January 6, 2000; NY E89523, dated November 26, 1999; NY C82364, dated December 29, 1998; NY 80516, dated August 13, 1998; NY F82073, dated December 3, 1997; NY C80521, dated November 25, 1997 NY C80579, dated November 10, 1997; and NY B88066, dated August 18, 1997. Furthermore, Customs has ruled that separately packaged swimwear tops and bottoms imported in unequal numbers so that there are “extra” tops or bottoms remain classified as swimwear of heading 6112, HTSUSA. HQ 952907, dated January 29, 1993. Thus, it appears that a swimwear top imported without a swimwear bottom (or vice versa) is classified as swimwear.

However, a question has been raised as to whether or not the instant swimwear should be treated similar to pajamas. In order to be classified as pajamas, Customs has stated that there must be both a top and bottom garment. Pajama bottoms imported without their matching pajama tops are not classifiable as pajamas. In the case of shipments of one component or shipments of unequal numbers of tops and bottom where there are “extra” components, the lone component is not classifiable as pajamas. See HQ 963371, dated December 2, 1999; HQ 961978, dated June 17, 1999; HQ 960523, dated August 8, 1997; HQ 958385, dated October 26, 1995; HQ 957760, dated April 17, 1995; HQ 957757, dated April 11, 1995; HQ 956505, dated October 12, 1994; HQ 956239, dated October 4, 1994; and HQ 956202, dated September 29, 1994. Applying this argument to the instant case, both a top and bottom swimwear garment would have to be imported together to be classified as swimwear.

However, it is important to note the differences between the provisions for sleepwear and swimwear. Unlike the provisions for sleepwear which specifically provide for different types of sleepwear such as “pajamas” or “nightdresses”, the swimwear provisions only provide generally for “women’s swimwear” without differentiating between types of swimwear such as “bikinis” or “maillots.” The question in the pajama cases was whether the lone garment met the strict definition of “pajamas”. The question in this case is not whether the instant garments meet the definition of “bikini” but whether the garments meet the definition of “women’s swimwear.” In the rulings on pajamas, Customs explained that a sleepwear top entered alone would not be classified as “pajamas” but rather as an “other” sleepwear garment similar to pajamas. However, there is no similar residual or basket provision for other similar articles in the swimwear provisions. If Customs were to find that one piece of a two-piece bathing costume was excluded from classification as swimwear it would be classified outside the heading as a garment other than swimwear. This result seems absurd.

The Court of International Trade acknowledged that a swimsuit has been defined as “a garment designed for wearing while swimming.” Hampco Apparel, Inc. v. United States, 12 Ct. Int’l Trade 92, 96 (1988) citing The New Encyclopedia Brittanica, Vol. II, at 446 (15th ed. 1986). The court also stated “if a garment was designed and constructed as swimwear, it shall be so classified.” Id. There is no dispute in this case that the instant garments are designed and constructed as swimwear. The weight and absorbency of the fabric of the instant garments are indicative of swimwear. Additionally, the styling of the garments make them readily identifiable as swimwear.

Pajama tops and pajama bottoms are classified within the sleepwear provisions whether they are imported together or not. Thus, it follows that bikini tops and bikini bottoms should also be classified within the swimwear provisions whether they are imported together or not. It would be contrary to logic to say that the bikini top that is imported without a bottom is rendered something other than swimwear. Thus, it is Customs belief that the provision for women’s swimwear is broader than the provision for “pajamas”. The provision for women’s swimwear is not limited to a combination of a top and bottom garment and covers all women’s swimwear. Although there must be two pieces to be a “two-piece bathing costume”, a bikini top is also classified as swimwear because the provision for women’s swimwear is sufficiently broad. Thus, swimwear tops and bottoms, when imported separately, remain classified as swimwear of heading 6112, HTSUSA.

This decision is consistent with NY F81308, dated January 6, 2000, in which Customs ruled that women’s mix and match swim tops and bottoms imported separately are classified as swimwear of heading 6112, HTSUSA.

Customs located a ruling which classified an “extra top” imported with a bikini top and bottom as a top under heading 6114, HTSUSA. NY 856281, dated October 5, 1990. However, since the “extra” top was described as a “printed crop tank top” it is this office’s belief that the garment was not swimwear and the ruling should not be considered as inconsistent with this ruling.

HOLDING:

The bikini tops and bottoms are 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. The applicable general column one rate of duty is 25.2 percent ad valorem and the quota category is 659.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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