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HQ 958793




August 4, 1997

CLA-2 RR:TC:TE 958793 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.8020

Ms. Cathy Johnson
Unionbay
Division of Seattle Pacific Industries, Inc. Post Office Box 58710
Seattle, Washington 98138

RE: Boys' Woven Swimwear; Essential Character Imparted by Inner Shell; Hampco Apparel, Inc. v. United States

Dear Ms. Johnson:

This letter is in response to your request of November 21, 1995, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of boys' swim trunks manufactured in China. A sample was submitted with your request.

FACTS:

The sample, identified by style number 61U841-77, is a pair of boys' woven shorts with a translucent outer shell composed of woven nylon textile material (weighing approximately 0.018 of an ounce per square meter), a plaid inner shell of woven cotton material (weighing approximately 1.35 ounces per square meter), and a nylon mesh liner. The trunks have hemmed leg openings, a fully elasticized waistband with a functional drawstring, two inserted side seam mesh pockets, and a rear patch pocket with a hook and loop type fabric closure. When imported, the front fly will be operational with a hook and loop type fabric closure. The importer produces no advertising material or other descriptive literature concerning the article. -2-

ISSUES:

1) Whether the article is classified in heading 6211, HTSUS, as woven swimwear.

2) Whether the article's essential character is imparted by the nylon outer shell or the cotton inner shell.

LAW AND ANALYSIS:

Classification under the HTSUS 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

The boys' trunks satisfy the criteria which the Court of International Trade (CIT) found pertinent to garments properly classified as swimwear, in Hampco Apparel, Inc. v. United States, 12 C.I.T. 92, Slip Op. 88-12 (1988 Ct. Intl. Trade). The CIT found that an article properly classified as swimwear: 1) has an elasticized waistband through which a drawstring is threaded; 2) has an inner lining of lightweight material; and 3) is designed and constructed for swimming. Customs generally determines whether a garment is designed and constructed for swimming by its appearance. See Headquarters Ruling Letter (HQ) 081447, issued March 21, 1988, and HQ 083637, issued April 21, 1989. Based upon this garment's appearance, we find that the boys' trunks are designed and constructed for swimming.

Among other goods, heading 6211, HTSUS, covers swimwear that is not knitted or crocheted. Subheading 6211.11, HTSUS, provides for men's or boys' swimwear. Classification at the eight digit level depends upon whether this article, a composite good, is determined to be of man-made fibers (in this case, nylon) or of cotton. Since the outer shell is composed of nylon and the inner shell consists of cotton, we look to GRI 2(b), which states: -3-

The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) states, in pertinent part, that:
when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods...those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Since we need to determine the subheading in which the article will be classified, GRI 3(a) is inapplicable. We thus look to GRI 3(b), which in pertinent part states:

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, insofar as this criterion is applicable.

In order to determine the essential character of the boys' woven swim trunks, we next view Explanatory Note VIII to GRI 3(b), which provides the following guidance:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In this case, the woven cotton inner shell not only predominates by weight, but provides an element of decency through its role as the only opaque layer of textile material. When the swimwear's flimsy nylon outer layer becomes wet, the inner shell remains visually impenetrable, a significant characteristic for the modest user. We consider the outer layer to be merely a styling feature and find that the woven cotton inner shell provides this garment with its essential character.

HOLDING:

The boys' woven swim trunks, identified by style no. 61U841-77, are classified in subheading 6211.11.8020, HTSUSA, textile category 359, the provision for "Track suits, ski-suits and -4-
swimwear; other garments: Swimwear: Men's or boys': Other, Of cotton: Boys'." The general column one duty rate is 7.8 percent ad valorem.

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 (Restraint 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,


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