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HQ 960166




August 28, 2002

CLA-2 RR:CR:TE 960166 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6112.41.0040

Bruce N. Shulman, Esq.
Stein, Shostak, Shostak & O'Hara
1620 L Street NW
Washington, DC 20036-5605

RE: Reconsideration of New York Pre-classification Decision (PD) A84903, dated July 10, 1996; Classification of a Child's Swimsuit; EZ Swimsuit®

Dear Mr. Shulman:

This letter is to inform you that Customs has reconsidered New York Pre-classification Decision (PD) A84903, issued to you on July 10, 1996, on behalf of your client, SwimWays Corporation, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a article worn by a child, identified as a EZ Swimsuit®. After review of that decision, the information you provided with your submissions, as well as the information you presented at a meeting with representatives of my staff, it has been determined that the classification of the garment in subheading 6112.41.0040, HTSUSA, was correct.

FACTS:

You describe the article that is the subject of this reconsideration as a "swimming aid". It was classified in subheading 6112.41.0040, HTSUSA, which provides for “Track suits, ski-suits and swimwear, knitted or crocheted: Women's or girls' swimwear: Of synthetic fibers: Other: Girls'." The article was described in PD A84903 as follows:

The submitted garment, style EZ Swimsuit, is a unisex children's swimsuit manufactured of 100 percent nylon knit material. The one-piece pull-on tank style swimsuit has shoulder straps and is constructed with eight vertical pockets around the entire garment. These pockets are designed to hold custom made cylinders manufactured in the United States which will be inserted after importation. The cylinders can be removed as the child learns to swim. Style EZ Swimsuit will be imported in children's sizes 2 to 6.

The item is manufactured in Malaysia.

It is your position that pursuant to Additional U.S. Rule of Interpretation 1(a), the subject item is properly within the class or kind of goods known as "swimming aids", since the item's principal use is to train children to swim. As such it is your view that the subject item is classifiable under subheading 6307.90.99, as other made up textile articles and not as wearing apparel.

ISSUE:

Is the textile article at issue classifiable as a swimsuit or as an other made up article?

LAW AND ANALYSIS:

Classification under the HTSUSA 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 competing provisions for this merchandise are heading 6112, HTSUS, and 6307, HTSUS.

Chapter 61 covers articles of apparel that are knitted or crocheted. Heading 6112, HTSUS, provides for track suits, ski-suits and swimwear, knitted or crocheted. In order to classify the article in Chapter 61, HTSUSA, it must be considered wearing apparel. Heading 6307, HTSUS, provides for other made up textile articles not more specifically provided for elsewhere in the tariff schedule. To be classified under subheading 6307, HTSUS, this article must be considered "of textiles", be "made up" within the meaning of Note 7, Section XI, and must also not be more specifically classifiable as a garment of Chapter 61.

Customs has consistently followed the long-standing classification principle enunciated by the Supreme Court in United States v. Citroen, 223 U.S. 407, 414-415, 32 S.Ct. 259, 56 L.Ed. 486 (1911), which stated that:

[t]he rule is well established that "in order to produce uniformity in the imposition of duties, the dutiable classification of articles must be ascertained by an examination of the imported article itself, in the condition in which it is imported." (cites omitted) This, of course, does not mean that a prescribed rate of duty can be escaped by resort to disguise or artifice. When it is found that the article imported is in fact the article described in a particular paragraph of the tariff act, an effort to make it appear otherwise is simply a fraud on the revenue and cannot be permitted to succeed. (cite omitted)

In essence, as was maintained in United States v. Citroen, Customs may look beyond the "condition as imported" rationale if there is reason to believe that the importer is attempting to circumvent prescribed tariff duties by resorting to illegal methods. In this case, there is no need for Customs to look beyond the "condition as imported" rationale since there is no objective basis to believe that an attempt is being made to circumvent Customs regulations.

It is your position that the subject article is properly within that class or kind of goods known as "swimming aids", since the article's principal use is to train children to swim. It is your contention that the use of the EZ Swimsuit® goes far beyond that of a typical swimsuit; that the EZ Swimsuit® is designed to train children to swim. You argue that:
the subject swimming aids differ substantially from conventional swimwear in that they are specially constructed with eight vertical slots around their circumference. Each of these slots, which is open at the bottom, is designed to contain a custom-made U.S. manufactured foam cylinder, which is inserted to make these swimming aids buoyant. Each foam cylinder can be individually removed from its slot to reduce buoyancy as children gain confidence in swimming. When children can swim without the aid of the foam cylinders, these swimming aids are no longer used, because they have fulfilled their purpose, and the children are ready to use conventional swimsuits, which have no slots or foam cylinders because they do not need to provide buoyancy.

It is your view that the eight long vertical slots around the entire circumference of the sample have a very specific use and function and are never found on articles known as "swimwear"; and that the presence of these slots is sufficient to preclude the subject article from being classified as swimwear. It is your contention that the only difference between the Swim Sweaters® classified in HQ 952204, and the subject sample is that the inflatable tubes in the Swim Sweaters® were not removable, while the foam insets in the sample are replaceable in the event they are damaged and can be individually removed to increase or decrease the buoyancy of the swimming aids. You argue that the replaceable nature of the foam is merely an improvement in the concept on which the Swim Sweaters® were originally based and is not a new idea warranting or mandating a change in classification from that for Swim Sweaters®.

In HRL 952204 of April 12, 1993, we examined the issue of whether a flotation device is classifiable as a garment. The merchandise at issue in that ruling was described as:
an inflatable swimming aid [a swim sweater], which is specially designed for use by children ages 26. The article is composed of a rubber inner tube, the flotation chamber, encased in a stretch nylon case which is firmly attached to a short nylon sweater. * * * It permits the child to float upright or to try swimming, providing the appropriate buoyancy under the body to keep her head out of the water. * * * [T]he article is not designed to perform a lifesaving function and is not sold for that purpose....

In HRL 087946 of December 24, 1991, we initially classified this merchandise under heading 6114, HTSUSA, as a sweater. In determining that this decision was incorrect we stated in HQ 952204:

We do not dispute that the imported articles are designed to be worn and, therefore, fall generally within the class or kind of articles considered to be wearing apparel. See Arnold v. United States, 147 U.S. 494, 496 (1892). *** However, all things worn by humans are not necessarily wearing apparel. See Dynamics Classics, Ltd. v. United States, Slip. Op. 86-105, 10 C.I.T. 666 (Oct. 17, 1986) (plastic suits used for weight reduction inappropriate for wear during exercise or work not wearing apparel); Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D. 2006 (1958) (crash helmets not wearing apparel); Best v. United States, 1 Ct. Cust. Appls. 49, T.D. 31009 (1910) (ear caps for prevention of abnormal ear growth not wearing apparel). Admiral Craft Equipment, supra, developed the standard that items are not considered wearing apparel when the use of those items goes "far beyond that of general wearing apparel." Daw Industries, Inc. v. United States, 714 F.2d 1140, 1143 (Fed. Cir. 1983).

In Daw Industries the Court found that sheaths and socks used exclusively with prostheses do not provide "significantly more, or essentially different," protection than analogous articles of clothing, but merely "differ incrementally.” The Court concluded that while in some cases the differences may become so large that the article is no longer wearing apparel, that was not the case with the sheaths and socks.

In HQ 952204, Customs applied the reasoning relied upon in Daw Industries and found that while the “swim sweater” provided some protection from the elements and arguably adorned the body, it was used in very specific situations. Customs concluded that the increment in the difference in use and effect between the “swim sweater“ and a conventional sweater was so large that the “swim sweater” was no longer wearing apparel. For additional rulings finding that “swim sweaters” are not wearing apparel, see HQ 952483, dated May 27, 1993; HQ 95590, dated January 31, 1994; HQ 953775, dated April 12, 1993; and HQ 953776, dated April 12, 1993.

We note that the EZ Swimsuit® is being imported without the foam floats--those will be inserted after importation into the United States. You argue that because the article is purchased only by parents of young children for use as swim training devices for young non-swimmers, and sold and marketed in pool supply stores, toy stores, sporting goods stores and in the pool supply or sporting goods section of mass-market retail stores distinguishes them from conventional swimwear. The fact that the EZ Swimsuit® may be purchased by the ultimate purchaser with the floats for use as swimming aids, is irrelevant to the classification of the EZ Swimsuit® which is imported without these foam floats--it is the condition of the EZ Swimsuit® when imported that determines its classification. When imported it is not a swimming aid, the addition of the floats is what imparts this characteristic to the article, and the floats are not part of what is being imported or for that matter what is being classified.

You assert that the EZ Swimsuit®, despite its name, is not a type of swimsuit. In support thereof you argue that the mere presence of the eight slots around the article is sufficient to preclude the article from being classified as swimwear. We disagree. The EZ Swimsuit® without the floats is mainly a garment with a slotted overlay which will be worn in and around the water, a swimsuit, and will be used as such.

In HQ 951293, issued April 7, 1992, we held that a garment used while swimming with a pocket/slot in the breast area was classifiable as a swimsuit. We stated that "[a]lthough the garment has specially constructed pockets in the breast area, it is still a swimsuit and will primarily be used as such, therefore it must be classified as a swimsuit."

In HQ 950562, dated January 9, 1992, Customs classified a snorkeling vest designed to provide surface flotation as well as warmth as a garment. This ruling was affirmed in HQ 952483, dated May 27, 1993. The vest was constructed by bonding a flotation pocket to a neoprene vest. Relying on the EN to Heading 6113, HTS (heading includes oilskins & divers' suits), Customs reasoned that if the neoprene vest were imported without the flotation pocket, it would be classified as a garment. Customs next considered, in light of Daw Industries, supra, whether the additional protection and other advantages afforded by the flotation pocket were "significantly more, or essentially different," than those provided by the neoprene vest alone. Because marketing materials stated that the vest was “designed to provide warmth and a small amount of flotation,” Customs concluded that the snorkeling vest did not differ significantly from a neoprene vest alone, and affirmed HQ 950562.

The Daw reasoning is applicable to this matter. While the EZ Swimsuit® with the addition of the floats after importation may provide buoyancy protection and be used as a swimming aid, at the time of importation, it is merely a child's unisex "one-piece suit with pockets" (to quote your client's 1997 Swim Ways catalog). The increment in the difference between the EZ Swimsuit® when imported and conventional swimsuit is not so large that we must conclude that the EZ Swimsuit® is no longer wearing apparel. In light of all the foregoing, it is our opinion that the EZ Swimsuit®, at the time of importation, is a swimsuit. Accordingly, the classification of the garment in PD A84903, as a swimsuit is affirmed.

HOLDING:

The EZ Swimsuit® is properly classified in subheading 6112.41.0040, HTSUSA, which provides for “Track suits, ski-suits and swimwear, knitted or crocheted: Women's or girl's swimwear: Of synthetic fibers: Other: Girl's.” The 2002 general column one rate of duty is 25.2 percent ad valorem and the textile quota category is 659.

PD A84903 is affirmed.

The designated textile and apparel category may be subdivided into parts. If so, the 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 Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quota (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.treas.gov.

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 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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