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HQ 958249




October 23, 1995

CLA-2 R:C:T 958249 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

Robert T. Stack, Esq.
Siegel, Mandell & Davidson, P.C.
1515 Broadway, 43rd Floor
New York, NY 10036-8901

RE: Classification of men's woven nylon swimwear, heading 6211, HTSUSA; Hampco Apparel Inc. v. United States; swimwear and belt set; GRI 3(b); composite goods not offered for sale separately; essential character determined by swimwear

Dear Mr. Stack:

This is in response to your letter dated June 19, 1995, on behalf of your client, Roytex, Inc., requesting classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain men's woven nylon swimwear imported from Bangladesh.

FACTS:

The merchandise comprises of five styles of men's boxer style swimwear composed of a 100 percent lightweight nylon woven shell and a 100 percent polyester mesh lining and featuring an inside mesh coin pocket:

Style 225421 features a fully elasticized waist with five tunnel belt loops, two front cargo pockets with small velcro closures, one of the pockets also having an overlaid patch pocket, two rear zippered pockets with covered openings and a belt.

Style 322017 is identical to style 225421 except that it comes in big and tall sizes.

Style 225422 features a zippered front opening with a snap button at the waist, two front slash pockets, each having an overlaid patch pocket with a flap and button closure, a fully elasticized waistband with five tunnel belt loops, and a back pocket with a flap and snap closure. This style will be imported with the belt found on style 225421 and style 225423.

Style 225423 features two front pockets with diagonal openings, an exterior coin pocket with velcro closure, a back pocket with welting and a snap closure, a fully elasticized waistband without a fly opening, tunnel belt loops and a belt.

Style 225424 features two on-seam side pockets, an insert front pocket with a zipper closure, a rear pocket with a flap opening (velcro closure), a fully elasticized waistband and a drawstring.

ISSUE:

What is the proper classification for the submitted merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by 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.

In Hampco Apparel, Inc. v. United States, Slip Op. 88-12 (January 28, 1988), the Court of International Trade stated that three factors must be present if a garment is to be considered swimwear for tariff purposes:

(1) the garment has an elasticized waistband through which a drawstring is threaded

(2) the garment has an inner lining of lightweight material, and

(3) the garment is designed and constructed for swimming

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, November 23, 1988, also provide guidelines in classifying garments as either men's shorts or swimwear. The guidelines state:

Garments commercially known as jogging or athletic shorts are normally loose-fitting short pants usually extending from the waist to the upper thigh and usually have an elastic waistband. They may resemble swim trunks for men, boys, or male infants, which are not included in this category. Swim trunks will usually have an elasticized waist with a drawstring and a full lightweight support liner. Garments which cannot be recognized as swim trunks will be considered shorts. (Emphasis added).

In Headquarters Ruling Letter (HRL) 081477, dated March 21, 1988, we stated that in order to determine whether a garment is designed and constructed for swimming, we will first look at the appearance of the garment. If the appearance is inconclusive, the following evidence will be considered: the way in which the garment has been designed, manufactured, marketed or advertised, the way in which the manufacturer or importer intends the garment to be used, and the way in which a garment is chiefly used. Customs has classified similar merchandise in the past. In HQ 957409, dated January 27, 1995, and HQ 956299, dated May 13, 1994, garments designed similarly to the submitted garments, i.e., with a lightweight outer shell, pockets, belt loops and a belt, were classified as swimwear.

All of the subject merchandise, except style 225424, are composite goods inasmuch as they have components that may be classifiable under heading 6211, HTSUSA, which provides for men's woven swimwear, and heading 6217, HTSUSA, which provides for other made up clothing accessories. Customs notes, however, that the two component pieces, the swimwear and the belts, are adapted to one another in that the loops on the swimwear are sized to accommodate the belts, and the casual nature of the belts and swimwear are mutually complementary in both use and styling. Moreover, the pieces will be sold as a unit and the belts are not of the type that are usually sold separately at retail.

As per GRI 2, goods comprised of more than one material, or which are prima facie classifiable under two or more provisions in the nomenclature, are to be classified according to GRI 3. GRI 3(a) mandates that of several applicable headings, the one that provides the most specific description shall be preferred. This rule is inapplicable here because headings 6211 and 6217, HTSUSA, are equally specific in that each provides for a different component of the subject merchandise. GRI 3(b) provides:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.

Essential character in this instance is clearly provided by the swimwear. The belts are mere accessories and would not be the motivating factor in the purchase of this merchandise. Both the swimwear and the belts are properly classifiable under heading 6211, HTSUSA. See also, HQ 950210, dated September 4, 1991 and HQ 081619, dated October 6, 1988, wherein Customs ruled on a swimwear and belt set and a men's trousers and cotton belt set, respectively.

HOLDING:

The subject men's swimwear and belt sets, referenced style numbers 225421, 322017, 225422, and 225423, and style number 225424, which does not come with a belt, are classified under subheading 6211.11.1010, HTSUSA, which provides for track suits, ski-suits and swimwear; other garments: swimwear: men's or boys': of man-made fibers: men's. The applicable rate of duty is 29.4 percent ad valorem and the quota 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 renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status on Current Import 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 contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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