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HQ 961232




February 22, 2000

CLA-2 RR:TC:TE 961232 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4030

Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, NY 10004

RE: Classification of Men’s Woven Nylon Shorts: Not Swimwear, Heading 6203, HTSUS; PC A88849 superceded

Dear Ms. Cumins:

This is in response to your request dated December 1,1997, on behalf of your client, Authentic Fitness Corporation, requesting classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of six pairs of men’s nylon garments which are marketed as SPEEDO® “Surf Runners”. Seven samples of “Surf Runners” were provided to this office for examination, although style 727000 was submitted for illustrative purposes only, as it had previously been classified in PC A88849 as swimwear.

FACTS:

All the submitted samples are men’s shorts with woven nylon shells and mesh liners of 100% polyester. The liners have concealed change pockets. They each have a fully elasticized waistband with a functional drawstring. The garments all have high split leg openings. The inseam length of the garments is approximately 2 inches. The garments have an interior waistband label containing the name as well as the trademark of SPEEDO®. The name SPEEDO® is embroidered on the left side of all but one of the garments. The trademark of SPEEDO® is embroidered on the front of one garment. The same SPEEDO® trademark is a design feature on the front of that garment. The samples are all known as “Surf Runners” and will be sold with a tag showing a man running and the words: “Surf Runner” and with the exhortation; “Run in it... swim in it... live in it!” The samples were produced in Taiwan.

ISSUE:

Whether the submitted samples are properly classified as swimwear, heading 6211, HTSUSA, or shorts, heading 6203, HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI) govern classification of merchandise under the HTSUSA. 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 GRIs will be applied, in the order of their appearance.

In Hampco AppareI, Inc. v. United States, 12 Ct. Int’l Trade 192 (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, namely nylon tricot, and

(3) the garment is designed and constructed for swimming.

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 HTSUSA 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.

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.

Customs has been consistent in ruling that in those instances where the first two factors enumerated by the court in Hampco are present, but the third factor is lacking, the article will be considered shorts (See also, HQ 086436, dated May 3,1990; HQ 086979, dated May 15, 1990; HQ 087476, dated September 7,1990; HQ 950207, dated December 3,1991 and HQ 960652, dated February 12,1992).

Several factors lead us to believe that although the first two factors enumerated in Hampco are present, the men’s shorts are not designed and constructed as swimwear. 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.

Following HRL 081477 we must seek evidence as to the way the subject merchandise is marketed or advertised. The hangtag placed on the shorts indicate that the garments are called “Surf Runners”. It shows a man running and has the words “Run in it... swim in it... live in it!” printed on it. We note that, page 8 of SPEEDO®’s spring 1998 catalogue advertises the “Surf Runners”. It illustrates two men running and a third in an indeterminate pose. There are no illustrations of men swimming. In addition, Customs visited two “SPEEDO®: Authentic Fitness” retail stores and a retail store called “Crosstown Sports”. In one SPEEDO® store, a sales clerk advised us that although the “Surf Runners” could be used for either running or swimming, they would be principally used as running shorts. In the second SPEEDO® store the sales clerk said that the “Surf Runners” were a multi-purpose garment that could be used for either swimming or running. In the “Crosstown Sports” store the sales clerk said the “Surf Runners” were running shorts. This substantiates the finding that the garments are clearly multi-purpose shorts and not designed and constructed specifically for swimming.

It is possible that these garments might be worn for swimming, but Customs believes such a use would be a fugitive one and would not be the use for which the garments are primarily purchased.

In regard to use, the court in Hampco, at 96, stated:

The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function. Trans-Atlantic Co., v. United States,. 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff’d, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973).

The fact that swimwear may be used for other incidental purposes unrelated to swimming, e.g., boating, basketball, volleyball and bicycling, does not change its character as swimwear. If the garment was designed and constructed as swimwear, it shall be so classified.

The court’s remarks regarding swimwear susceptible to fugitive uses may also be said of sports shorts designed primarily for uses other than swimming, but which could be used for swimming. Such a use would be a fugitive use.

As there is no support for the fact that the submitted shorts are designed and constructed for swimming, Customs is of the view that the shorts are properly classifiable under heading 6203, HTSUSA, as shorts.

HOLDING:

The submitted men’s sized shorts are properly classified under subheading 6203.43.4030, HTSUSA, which provides for men’s woven shorts of synthetic fibers. The applicable year 2000 general column one rate of duty is 28.6 percent ad valorem. The textile category is 647.

PC A88849 is hereby superseded by this decision with respect to any garments identical to those here in issue. This decision is effective 60 days from the date of this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division

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