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HQ 963354




March 29, 2000

CLA-2 RR:CR:TE 963354 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.63.3532

Mr. George Heiligman
ProTrade Import & Export Co.
3843 W. 11th Avenue
Eugene, Oregon 97402

RE: Revocation of HO 804530; men's woven shorts; not swimwear

Dear Mr. Heiligman:

On December 9, 1994, our Houston office issued to you, Houston Ruling Letter (HO) 804530, classifying certain “men’s woven shorts” in heading 6211, Harmonized Tariff Schedule of the United States (HTSUS), as men’s swimwear. This letter is to inform you that pursuant to a review of that ruling, we believe classification of that merchandise in heading 6211, HTSUS, is in error. Accordingly, that ruling letter is revoked pursuant to the analysis which follows below.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of HO 804530 was published on February 23, 2000, in the Customs Bulletin, Volume 34, Number 8. No comments were received.

FACTS:

In HO 804530, the submitted merchandise was referred to as men’s “swim shorts” and described as follows:

Style A, style number 6880, is a pair of men’s woven 100 percent polyester swim shorts with a knit 100 percent polyester liner, an elasticized waistband, a mini hip pocket with hook and loop fasteners, and short flared leg openings with side slits;

Style B, style number 6960, is a pair of men’s woven 100 percent nylon swim shorts with a knit 100 percent polyester liner, an elasticized waistband, a small hip pocket with hook and loop fasteners, and hemmed leg openings with side vents;

Style C, style number 6920, is a pair of men’s woven 100 percent nylon swim shorts with a knit 100 percent polyester liner, an elasticized waistband with drawcord, front pockets, a hip pocket, and hemmed leg openings.

ISSUE:

What is the proper classification for the subject merchandise?

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, Slip Op. 88-12 (January 28, 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, and

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

In Headquarters Ruling Letter (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. 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, Customs’ 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, we then look to the design, manufacture, marketing or advertising; intended use of the garment and principal use of the garment for guidance.

Customs has been consistent in ruling that even 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 950652, dated February 12, 1992).

Upon examination of the subject garments, it would be a fair statement to say that these garments will be worn for purposes other than swimming. First, we note that the subject merchandise does not satisfy all of the criteria required by Hampco. Of all the styles, only style “C” features a drawstring cord; styles A and B feature an elasticized waistband without a drawcord. Additionally, all of the shorts feature some sort of small pocket(s), which we assume will serve the purpose of containing small objects, such as keys, when engaging in a sport related activity which is not exclusively the sport of swimming. Although we do not hold issue with the claim that these garments can be used as swimwear, as reflected in the marketing material submitted, these garments clearly are “transition” garments for use “in swimming and other summer related sports including but not limited to swimming, sun bathing, river rafting, and other multi-sports activities.”

Albeit we do not dispute that these garments might be worn for swimming, it is our belief that 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, also 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 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 is the case here. (See also HQ 952322, dated December 17, 1992). Accordingly, it is our belief that the submitted garments are not principally designed and constructed for swimming, and that they are more appropriately classified as outerwear shorts.

We also note with interest that although these shorts were classified as “men’s shorts” there is nothing in the design and construction of these garments that would indicate that they are to be worn only by men. Chapter 62, HTSUS, note 8 states, in relevant part:

Garments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments.

As such, these garments are classified in heading 6204, HTSUS, in the appropriate subheading for women’s outerwear shorts.

In a recent telephone conversation with a member of my staff it was mentioned that current importations of this merchandise are identical in construction except for the placement of the pocket. Whereas the shorts once featured a pocket at the hip, they now feature an inside pocket which is sewn into the front of the shorts. Despite the change in the placement of the pocket these shorts remain properly classified in heading 6204, HTSUS, pursuant to the analysis which is set forth above.

HOLDING:

Styles “A”(style number 6880), “B”(style number 6960), and “C”(style number 6920) are classified under subheading 6204.63.3532, HTSUSA, which provides for, women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, 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: other: shorts: women’s. The applicable general column one rate of duty is 29.5 percent ad valorem and the quota category is 648.

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 you 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, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

HO 804530 dated December 4, 1994, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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