Classification of "Aquastar" floataid swimshirt and shorts

HQ H043008 January 27, 2009 CLA-2: OT:RR:CTF:TCM H043008 KSH CATEGORY: Classification TARIFF NO.: 6110.30.30; 6203.43.40 Neil S. Helfand, Esq. Simon Gluck & Kane LLP 1700 Broadway New York, NY 10019 RE: Classification of “Aquastar” floataid swimshirt and shorts Dear Mr. Helfand: This letter is in response to your request of October 10, 2008, on behalf of your client, Swimsafe, Inc., in which you request a prospective ruling on the classification of the “Aquastar” floataid swimshirt and shorts under the Harmonized Tariff Schedule of the United States (HTSUS). Your request was forwarded by the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP) to this office for direct reply. In reaching our decision, additional consideration has been given to the substance of a meeting held between you and a member of my staff on January 13, 2009. FACTS: The merchandise at issue is identified as “Aquastar.” It is composed of a upper body and bottom component which attach to each other by coordinating snaps. It is designed to aid children learning to swim. The sample submitted in conjunction with your request features a hangtag which indicates that the Aquastar meets the U.S. Coast Guard requirements for a Type III Personal Flotation Device. Retail packaging states the following: “Added buoyancy for extra confidence”; “Contoured foam for natural movement”; “A great way to learn to swim”; “Floataid with bathing suit in 1!” and; “USCG approved.” The submitted sample is labeled as a size 5, however the packaging indicated that it is a “Size: Small/Ages: 2-3.” The upper body component is a polyester/spandex shirt with full upper body coverage, short sleeves and an elasticized waist. It is placed over the wearer’s head and features a back zipper which extends from the neck to three inches from the waist. It incorporates a sewn-in rolled collar filled with removable EVA foam and removable EVA foam inserts in the chest/abdomen and back areas. The EVA foam is stated to enable the wearer to maintain buoyancy in an upright position and to keep the wearers head above water. The upper body component also provides ultraviolet protection (“UPF 50+”). The bottom component is a pair of polyester woven board shorts which features a full mesh polyester liner, a flat waistband, a fly front with hook and loop closure, hemmed leg openings and two tabs at the center front waistband with four grommets and lace-up closure. ISSUE: Whether the Aquastar upper body component is classified in heading 6112 HTSUS, as swimwear, knitted or crocheted, heading 6307, HTSUS, as an other made up article, or heading 9506, HTSUS, as sports equipment. Whether the Aquastar upper body component and bottom component is classified as a composite good, heading 6203, HTSUS, as boys’ shorts of synthetic fibers, or heading 6211, HTSUS, as swimwear. LAW AND ANALYSIS: Classification of goods under the HTSUS 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 GRIs may then be applied. The headings at issue are as follows: 6110 Sweaters, pullovers sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: 6203 Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): 6211 Track suits, ski-suits and swimwear; other garments: 6307 Other made up articles, including dress patterns: 9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Note 1 to Section XI, HTSUS, in which headings 6110, 6203, 6211 and 6307, HTSUS, are found, states in relevant part: This section does not cover: * * * (t) Articles of chapter 95 (for example, toys, games, sports requisites and nets); Note 7 to Section XI, HTSUS, states, in relevant part: 7. For the purposes of this section, the expression "made up" means: (a) Cut otherwise than into squares or rectangles; (b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); Note 1 to Chapter 95, HTSUS, states in relevant part: This chapter does not cover: * * * (e) Sports clothing or fancy dress, of textiles, of chapter 61 or 62; You maintain that the upper body component is classified in heading 6307, HTSUS, specifically subheading 6307.20, HTSUS, as a life jacket. You assert that the main function of the upper body component is as a life jacket as evidenced by it design and function to keep a wearer buoyant and safe in water. Alternatively, during our meeting, you argued that the upper body component is classified in heading 9506, HTSUS, as sports equipment insofar as it is useful in water sports and has been specially designed and intended for use only while engaged in water sports. See Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246, 1251 (CAFC 2004) (wherein ice hockey pants composed of a textile shell and hard plastic guards specifically designed and intended for use only while playing ice hockey to protect the wearer from serious injury were classified in heading 9506, HTSUS). You also argue that the bottom component is prima facie classifiable as swimwear under heading 6211, HTSUS. You contend that the Aquastar upper body and bottom component are sold together, are adapted to one another and are mutually complementary, form a whole not normally offered for sale in separate parts and should be classified as a composite good under GRI 3(b). You believe that the essential character of the good is imparted by the floataid and that, as a result, it would be classified under heading 6307, HTSUS. You cite to Headquarters Ruling Letter (HQ) 962297, dated April 5, 2002, as support for your position. In HQ 962297, CBP classified a combination detachable stadium seat/picnic bag as a composite good. Classification of an article must begin at the four digit heading level with relevant legal notes, in accordance with the hierarchical system of classification embodied in the HTSUS. GRI 1. See HQ 951629, dated August 21, 1992. Note 13, Section XI, provides: Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.The General ENs to Chapter 62 state, "[i]t should be noted that, for the application of Note 13 to Section XI, the expression 'textile garments' means garments of headings 62.01 to 62.11." In view of the language of Note 13 and the additional clarification given by the Explanatory Notes, unless the upper body and bottom component are a composite good, they must be separately classified. 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, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." The ENs define composite goods made up of different components as: "not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts." The mere fact that components are attached together will not definitively create a composite good for tariff classification purposes. In determining whether the subject articles meet the definition of "composite good," CBP will apply the criteria set forth supra to the upper body and bottom component at issue. While we recognize that the components at issue are attached to one another, they do not feature "mutually complementary" fabric nor functions, in that, the bottom component does not need to be affixed to the upper body component to form a whole good. The upper body component appears to be complete and marketable without the bottom component and the bottom component is similarly functional, saleable and whole unto itself. The upper body component is used as a swimming aid or sun protective clothing while the bottom component is worn for decency or comfort. As such, the bottom component is distinguishable from the stadium seat/picnic bag of HQ 962297, in which we specifically noted that the stadium seat did not have any features which indicated it would be used alone, was made to the same size as the picnic bag for easy handling, incorporated special features which indicated that the two goods would be used together and was distinguishable from other seat cushions sold separately which featured thicker padding. Insofar as the upper body and bottom component do not constitute a composite good, Note 13 to Section XI, HTSUS, mandates that each component be classified separately. As such, a determination must be made whether the bottom component is a swimsuit or shorts. Woven shorts are classified in heading 6203, HTSUS, and swimsuits are classified in heading 6211, HTSUS. The packaging describes the bottom component as a bathing suit. In Hampco Apparel, Inc. v. United States, Slip Op. 88-12 (decided January 28, 1988), the Court of International Trade addressed the issue of whether to classify garments as shorts or swimwear. The decision set out the criteria to be followed in the classification of swimwear. It defined swimwear as those garments which have an elasticized waistband through which a drawstring is threaded, have a lightweight tricot liner, and are designed and constructed for swimming. The garment before the court was a pair of boxer-style shorts with a woven cotton shell, a full elasticized waistband with drawstring, side seam pockets, and a rear pocket secured with a flap and snap closure. In that case the court ruled that the garment before it was properly classified as swimwear. Although the Hampco decision involved classification of swimwear under the previous tariff schedule, i.e., the Tariff Schedules of the United States, it is relevant to decisions under the HTSUS as the tariff language at issue is the same and the current tariff does not offer any new or different guidance regarding the distinction between swimwear and shorts. See Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 (1988). In HQ 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. (We note that under the HTS "principal use" replaced "chief use".) See HQ 952751, dated January 12, 1993; HQ 952209, dated October 2, 1992; HQ 951841, dated August 11, 1992; and HQ 950501, dated December 17, 1991. As such, CBP’s analysis is in fact, a two part test, that is, (a) examination of the physical attributes of the garment (three Hampco features); and (b) where ALL three features are not present or not conclusive, we then look to the design, manufacture, marketing or advertising; intended use of the garment and principal use of the garment for guidance. In the current case, the bottom component has a mesh inner liner and meets the Hampco criteria that it has an inner lining of lightweight material. However, it is apparent that the bottom component does not meet the other criteria of Hampco; there is no drawstring threaded through an elasticized waistband nor an elasticized waistband. Without a drawstring or elasticized waistband, the garment does not satisfy the Hampco test. Moreover, the bottom component is identified as board shorts. It is noted that although board shorts were historically designed as swimwear, they may be "worn as sportswear or even casual wear by men, women and children." See "Board Shorts" by Eddie Tobey at www.ezinearticles.com. There is no evidence to support a finding that the board shorts are only worn while swimming. As such, the bottom component is classified as shorts. In HQ 962002, dated February 22, 2002, HQ 960646, dated December 16, 1997, HQ 961352 dated February 17, 2002, and HQ 951077, dated April 21, 1992, garments designed similarly to the submitted garment, i.e., constructed with lightweight woven outershell fabric (which will not retain an inordinate amount of water), mesh liners, and without a drawstring threaded through the waistband, were classified as shorts. In addition, in HQ 962636, dated June 3, 1999, a similar garment, without a drawstring drawn through the waistband but with a webbed belt that provided minimal tightening, was classified as shorts. The descriptions of the above garments are similar in many respects to the garment at issue here. It is our opinion that any variation in construction on this particular garment is not significant enough to warrant different classification. Moreover, in HQ 968420, dated October 31, 2006, men’s board shorts were classified as shorts. In reaching this determination CBP remarked board shorts “are marketed and displayed for use in such activities as surfing, kayaking, volleyball, beach lounging and swimming. The Explanatory Notes to heading 6307, HTSUS, explain that the upper body component cannot be classified as an other made up article of heading 6307, HTSUS, if it is more specifically provided for elsewhere in Section XI, HTSUS. In HQ 966391, dated October 7, 2003, CBP determined that two children’s float suits with eight removable foam inserts placed throughout the torso of the garment were classified in heading 6112, HTSUS, as swimwear. In so doing, CBP noted that while the float suits provided some buoyancy and could be used as a swimming aid, the additional protection was not significantly more or different than a swimsuit alone. CBP relied on Arnold v. United States, 147 U.S. 494, 496 (1892), in which the Supreme Court defined "wearing apparel" as "not an uncommon one in statutes, and . . . used in an inclusive sense as embracing all articles which are ordinarily worn -- dress in general." In Antonia Pompeo v. United States, 40 Cust. Ct. 362, 365, C.D. 2006 (1958), it was held that the term wearing apparel includes articles worn by human beings for reasons of decency, comfort or adornment, but does not include articles worn as a protection against the hazards of a game, sport or occupation. In Jack Bryan, Inc. v. United States, 72 Cust. Ct. 197, 204, C.D. 4541 (1974) the Court stated that the term wearing apparel is generic or descriptive and that under prior tariff acts it was held to mean all articles of wearing apparel worn by human beings for reasons of decency, comfort and adornment. Whether an article is to be considered wearing apparel or a “garment” depends on its use. See Admiral Craft Equipment Corp. v. United States, 82 Cust. Ct. 162, 164, C.D. 4796 (1979). In Daw Industries, Inc. v. United States, 1 Fed. Cir. 146, 150 (1983), the Court of Appeals for the Federal Circuit further elaborated that virtually all wearing apparel is to a degree (often a high degree) designed and worn to provide comfort and protection, often for very specific situations. The pivotal issue is whether the incremental difference in the article to be used in a specific situation has become so large that the article is no longer wearing apparel. The packaging for the instant merchandise identifies the article in part as a “floataid” and states that it is “a great way to learn how to swim”, that it has “added buoyancy for extra confidence”, has “contoured foam for natural movement” and provides UV protection. Like the merchandise in HQ 966391, the upper body component provides protection from the elements, protects the decency of the wearer and may even be said to adorn the body. While the upper body component may provide buoyancy and can also be used as a swimming aid the additional protection and other features of the upper body component are not significantly more or essentially different than a swimsuit alone. Indeed, marketing information for Swimsafe emphasizes that the article is a flotation aid with the aim of building confidence in the water and also is designed as sun protective clothing. The removable inserts add to its wearability. See www.tesco-shopping.com/Swimsafe.htm and www.jakabel.com. Thus, we conclude that the upper body component is wearing apparel of heading 6110, HTSUS. Insofar as the upper body component is classifiable as wearing apparel in heading 6110, HTSUS, it cannot be classified in 6307, HTSUS, as an other made-up article of textile. Further, the upper body component is not classifiable in heading 9506, HTSUS, as sports equipment. In H.I.M./Fathom, Inc. v. United States, 981 F. Supp. 610, the Court of International Trade determined, in relevant part, that wetsuits were classified as garments in heading 6113, HTSUS. In so doing, the Court stated that the wetsuits met the definition of a garment as they were undeniably articles worn as an outer covering for the human body while scuba diving. Id. at 615. The Court further noted that while pads and guards are included in the chapter as evidenced by the ENs which indicates that the Chapter covers “protective equipment for sports or games, [including] fencing masks and breast plates, elbow and knee pads, cricket pads, [and] shin guards”, there is no mention of wetsuits or any similar article of attire. Id. at 616-617. Unlike the ice hockey pants at issue in Bauer, supra, the merchandise at issue is not protective equipment incorporating hard padding to protect from serious injury nor is it specially designed or intended for use while swimming. As noted above, your marketing material indicates that the upper body component is equally intended for use as sun protective clothing. Consequently, like the wetsuit in H.I.M./Fathom, supra, the upper body component meets the definition of a garment and is excluded from classification in heading in Chapter 95, HTSUS, by application of Note 1(e) to Chapter 95, HTSUS. HOLDING: Pursuant to GRI 1, the upper body component is classified in heading 6110, HTSUS. It is specifically provided for in subheading 6110.30.3053, HTSUSA, which provides for: “Sweaters, pullovers sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other…Other: Other: Men’s or boys’: Other.” The column one, general rate of duty is 32% ad valorem. The textile category code is 638. Pursuant to GRI 1 and Note 13 to Section XI., the bottom component is classified in heading 6203, HTSUS. It is specifically provided for in subheading 6203.43.4040, HTSUSA, which provides for “Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other: Other… Shorts: Boys’: Other.” The general, column one rate of duty is 27.9% ad valorem. The textile category code is 647. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization ("WTO") member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch