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HQ 964381




October 19, 2000

CLA-2 RR:CR:TE 964381 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.40.4030

Mary C. Hunter
Import Production Status Administrator
John Rich and Bros. Woolrich
One Mill Street
Woolrich, PA 17779

RE: Request for reconsideration of classification: NY F86414, Men’s woven textile shorts not swimwear

Dear Ms. Hunter:

This is in response to a letter, dated July 27, 2000, requesting reconsideration of Customs New York Ruling (NY) F86414 which classified men’s woven textile shorts under the Harmonized Tariff Schedule of the United States Annotated. A sample was submitted to this office for examination and will be returned under separate cover per your request.

FACTS:

The subject merchandise involves three styles of men’s shorts (Styles 3039, 3040, and 3041). All three shorts are made of a 100 percent nylon woven shell with an interior knit mesh liner. The waistbands are fully elasticized and have an elastic belt measuring ¾ inches in width, which threads through the waistband. The belt is tacked securely at one side of the waistband channel and the remainder of the belt is threaded through the waist.

Style 3039, has an operational fly that will be changed to a mock fly for purposes of commercial importation. It features two side slash pockets with no drainage, right and left side seam zippered pockets with drainage holes and a back zippered pocket with a mesh pocketliner. The right side seam pocket features a double pocket with two zippers. In all, this style has six exterior pockets.

Style 3040 features two side seam pockets with no drainage, one back pocket with a mesh liner and “VELCRO” fastened flap, and one left side seam cargo pocket with “VELCRO” fasteners. The legs feature small side vents. The garment has a small interior coin pocket sewn to the waistband. This is a pull on style and there is no fly or mock fly on this garment.

Style 3041 is also a pull on style with side leg vents, an interior coin pocket, two side seam pockets with no drainage, and a back pocket with a mesh liner and a “VELCRO” fastened flap.

In NY F86414 dated May 12, 2000, three garments, Styles 3039, 3040 and 3041, were classified in subheading 6203.40.4030 HTSUSA, which provides for men’s shorts. You disagree with this classification and claim that the garments should be classified as men’s swimwear under subheading 6211.11.1010, HTSUSA.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The case of Hampco Apparel, Inc. v. United States, 12 C.I.T. 92 (1988), set forth three factors that must be present if a garment is to be considered swimwear for tariff purposes:

The garment has an elasticized waistband through which a drawstring is threaded, the garment has an inner lining of lightweight material, and the garment is designed and constructed for swimming.

In Headquarter’s Ruling (HQ) 952933, dated April 5, 1993, in citing HQ 081477, dated March 21, 1988, it was stated that in order to determine whether a garment is designed and constructed for swimming, Customs will first look at the appearance of the garment. HQ 952933 further stated that “If the appearance is not conclusive, 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 also, 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.

HQ 962636, dated June 3, 1999, summarized Customs application of Hampco (supra) and the standard by which Customs classifies a garment as swimwear by stating that “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.” HQ 962636 further notes that 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 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.

In the subject case, all three garments have an elasticized waistband with a belt threaded through it and an inner lining of lightweight material, thus meeting the first two Hampco features. However, after carefully examining all three styles, we note that the garment has not been designed and constructed for swimming. Styles 3039 and 3040 have a leg panel length of 19 ½ inches (as measured from the waist) and Style 3041 has a length of 19 inches. All three styles have wide leg openings measuring about 12 inches across. In addition, each garment has right and left deep side seam pockets that have no drainage. Taken as a whole, these features would prove extremely cumbersome and impractical if the garments’ primary purpose were to be used as swimwear.

Although it is possible that the garments may be used as swimwear, it is Customs belief that this would only be a fugitive use as the primary construction appears to be as a man’s sport short. With respect to fugitive use, the Court in Hampco 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 subject shorts may have an incidental purpose as swimwear, however, their function as sports shorts is unchanged. They have been designed and constructed with numerous pockets and a substantial leg panel which are features that are unrelated to the activity of swimming. Furthermore, you have failed to substantiate your claim that these men’s shorts are designed and advertised for primary use as swimwear. We have received only garment component detail sheets for the shorts and no evidence of how these designs facilitate and promote the garment’s use as swimwear. Nor have you submitted any evidence of marketing or advertising of the garment ‘s primary use as swimwear.

We do not find that HQ 950210, dated September 4, 1991, supports the subject garments’ classification as swimwear. This ruling involved men’s swim trunks with a woven shell of nylon and a liner of knit polyester which were classified as swimwear under heading 6211, HTSUSA. The swim trunks in this ruling share a similar feature of having a belt of nylon webbing with plastic clasp threaded through an elasticized waist, however, all the pockets of these particular trunks had mesh liners for drainage. See, also HQ 957409, dated January 27, 1995, in which men’s shorts with elastic belt were classified as swimwear under 6211, HTSUSA, and can be distinguished from the garments now in question because all exterior pockets had mesh liners. The subject garments have deep side seam pockets constructed of woven nylon material that captures and holds water because they have not been designed for drainage.

Based on the foregoing, it is our determination that the subject garments were correctly classified in NY F86414 as men’s shorts in heading 6203, HTSUSA.

HOLDING:

The subject merchandise is correctly classified in subheading 6203.43.4030, HTSUSA, which provides for, “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, 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: Shorts: Men’s.” The general column one duty rate is 50.9 cents/kg + 20.2 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 renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection at your 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 applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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