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HQ 961352




February 17, 2000

CLA2 RR:TC:TE 961352 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 Boy’s Woven Nylon Shorts; Not Swimwear; Heading 6203, HTSUS

Dear Ms. Cumins:

This is in response to your request dated January 6, 1998, on behalf of your client, Authentic Fitness Corporation, requesting classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of two pairs of boy’s nylon garments which are marketed as SPEEDO® brand garments. Two samples were provided to this office for examination.

FACTS:

Both submitted samples are boy’s shorts with woven nylon shells and mesh liners of 100% polyester.

Style 737702 has an elasticized waistband and a simulated fly front. There is a patch on the lower left leg with the word “SPEEDO®” embroidered on it. The trademarked SPEEDO® logo appears at recurrent intervals on the waistband. However, the garment contains no drawstring. There is a SPEEDO® label sewn into the inside of the waistband, as well as a care and content label. This care label states that the garment should be cool ironed. The garment has a relaxed fit and extends 12 inches from the waistband to the bottom of the garment. It is made in Taiwan.

Style 747461 has a fully covered tunnel elastic waistband without a drawstring closure. It has two side seam pockets. On the sides of the garment, black stripes are overlaid on a white insert. Attached to the liner is an interior exposed elasticized waistband with the trademarked SPEEDO® logo appearing at recurrent intervals. The wearer has the option of tucking the SPEEDO® waistband below the exterior tunnel waistband or leaving it exposed. There is a SPEEDO® label sewn into the inside of the waistband as well as a care and content label. This care label states that the garment should be cool ironed. The garment has a relaxed fit and extends 16 inches from the waistband to the bottom of the garment. It is made in China.

ISSUE:

Whether the submitted sample is classifiable as boys’ swimwear of heading 6211, HTSUSA, or boys’ shorts of heading 6203, HTSUSA?

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, 12 Ct. Int’l Trade 92 (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.

In the instant case, it is apparent that the submitted samples do not meet the first criteria of Hampco, there is no drawstring threaded through an elasticized waistband. Without a drawstring, the garments do not satisfy the Hampco test. In addition, the care labels indicates that the garments are to be ironed with a cool iron. This feature is indicative of a multipurpose garment whose principal use will not be as swimwear. In the Textile Category Guidelines, C.I.E. 13/88, it was recognized that “[G]arments which cannot be recognized as swim trunks will be considered shorts.”

Although you assert that the submitted sample is designed and constructed for swimming, you have provided no support for your assertion that the submitted shorts are, in fact, designed and constructed 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. TransAtlantic 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 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. The fact that the shorts may be used for other incidental purposes including swimming, does not change their character as shorts. Such a use would be a fugitive use.

There is no support for the fact that the submitted shorts are designed and constructed for swimming. Inasmuch as the shorts do not meet the three criterion of Hampco, it is Customs view that the shorts are properly classifiable under heading 6203, HTSUSA as shorts.

HOLDING:

The submitted boys’ sized shorts are properly classified under subheading 6203.43.4040, HTSUSA, which provides for boys’ woven shorts of synthetic fibers. The applicable general column one rate of duty is 28.6 percent ad valorem. The textile category is 647.

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 negotiations and changes, to obtain the most current information available, we suggest that your client check, close to the time of shipment, the Status Report 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 status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division


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