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HQ 964624





December 28, 2000

CLA-2 RR:TC:TE 964624 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4040; 6211.33.0061

Mr. Kuang Weixiong
Second Secretary
The Embassy of the People’s Republic of China 2300 Connecticut Avenue, NW
Washington, DC 20008

RE: Boys’ woven polyester swimwear, heading 6211, HTSUS; shorts, heading 6203, HTSUS

Dear Mr. Weixong:

This is in response to your letter dated October 3, 2000, addressed to Mr. Robert Abels, Office of Field Operations, in which you ask the Customs Service to verify that two pairs of boys’ shorts were classifiable as swimwear. A sample of each garment was provided for examination.

FACTS:

The first garment, no style number is given (referred to hereafter as “garment one”), is a pair of boys’ shorts with a woven shell and a knit mesh liner, both of which appear to be made of 100% polyester. The garment has a relaxed fit and measures 21 inches from the waist to the hem of the leg. The garment features a one and a quarter inch enclosed shirred elasticized waistband with a functional drawstring on the inside, and a hemmed bottom. Two inches below the waistband is an exterior rear pocket with a VELCRO-type closure and mesh lining. There is a textile label containing the name Maui and Sons®, as well as a trademarked symbol consisting of a double circle containing a circle, triangle, square and rectangle, affixed to the top of the pocket as well as on the interior of the garment. The garment also has a flapped cargo–type pocket on the left leg approximately two inches from the bottom. The flap has a VELCRO-type closure, as well as a patch containing a design similar to the trademarked
symbol, affixed to the center of the pocket. The bottom corners of each pocket features a small opening surrounded by a plastic ring, which resembles a grommet, which allows for ventilation and for water to escape the pocket. We assume the garment was produced in China.

The second garment, no style number is given, (referred to hereafter as “garment two”), is a pair of boys’ shorts with a woven 100% polyester shell and a knit mesh liner of 100% polyester. The garment measures 19 inches from the waist to the hem of the leg. The garment features a flat non-elasticized waistband, a placketed fly front opening with a VELCRO-type closure, and hemmed leg openings. The center front of the waistband also features a non-functional braided drawstring, two fabric overlays approximately 2 inches wide with two grommeted openings through which the drawstring is threaded. The rear of the garment features darts which start just below the waistband and extend approximately three inches, which provide for a fitted wear. The garment also features a rear pocket just below the waistband, with a VELCRO-type closure and mesh lining. There is a textile label containing the name Maui and Sons®, as well as a trademarked symbol consisting of a double circle containing a circle, triangle, square and rectangle, affixed to the top of the pocket as well as on the interior waistband of the garment. A patch containing a design similar to the trademarked name and symbol, is affixed to the rear center of the waistband. The sample was produced in China.

ISSUE:

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

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedules of the United States Annotated (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 GRIs will be applied, in the order of their appearance.

In Hampco Apparel, Inc. v. United States, 12 CIT 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.

Beyond possessing the listed criteria, the court determined that the garment at issue was designed, manufactured, marketed and intended to be used as swimwear. The court therefore concluded 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 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.

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. A classification determination is thus based on a two prong analysis, that is, first an examination of the physical features of the garment, and in circumstances where that proves inconclusive, an examination of the supporting evidence.

Garment one has an elasticized waistband with a functional drawstring. Thus, this submitted sample seems to meet the first of the three criteria enumerated by the court in Hampco.

However, in finishing its second criteria, the court stated in regard to the lightweight material, “namely nylon tricot”. Namely is defined in Webster’s II New Riverside University Dictionary (1984) at 783, as “That is to say SPECIFICALLY.” In other words, in referring to an inner lining of lightweight material the court was referring specifically to a lining of nylon tricot. Customs does not interpret the court’s wording so narrowly as to say that for a garment to be considered swimwear its inner lining must be of nylon tricot. However, we do interpret the court’s language to mean that a lightweight inner lining of nylon tricot is generally indicative of swimwear. When determining the classification of a garment with an inner lining of material other than nylon tricot, Customs will consider the material from which the lining is made and whether it is of a type generally used in the manufacture of swimwear. This consideration goes to the heart of the court’s third criteria, i.e., that the garment be designed and constructed for swimming.

Garment one has an inner mesh lining which although made from polyester, is lightweight and appears to be the type generally used in the manufacture of swimwear. We therefore find that the garment’s inner lining is indicative of swimwear.

In addition, we note that garment one’s grommeted pocket openings, which allow for drainage, is a feature that is only useful when found on swim trunks. We therefore find that garment one is designed and constructed for swimming. Customs is of the position that garment one is properly classifiable under heading 6211, HTSUS, as swimwear.

Several factors lead us to the belief that garment two is not designed and constructed as swimwear. It is apparent that the garment does not meet the first criteria of Hampco, there is no drawstring threaded through an elasticized waistband. Without a drawstring, the garment does not satisfy the Hampco test and the presence of a Velcro-type fly front, as well as darts which make the garment fitted to the shape of the wearer tend to be indicative of a multi-purpose garment whose principal use will not be as swimwear. In The Textile Category Guidelines, C.I.E. 13/88, November 23, 1988, it was recognized that “(G)arments which cannot be recognized as swim trunks will be considered shorts.”

As there is no support for the fact that garment two is designed and constructed for swimming, Customs is of the position that garment two is properly classifiable under heading 6203, HTSUS, as shorts.

HOLDING:

The submitted shorts, referred to as garment one, is properly classified under subheading 6211.33.0061, HTSUSA, which provides for boys’ swimwear of man-made fibers. The applicable general column one rate of duty of 16.7 percent ad valorem. The textile category is 659.

The submitted shorts, referred to as garment two, is properly classified under subheading 6203.43.4040, HTSUSA, which provides for boys’ woven shorts of synthetic fibers and is dutiable at the general column one rate of duty of 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 the importer 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, the importer should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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