HQ 966336 - Application For Further Review of Protest Numbers 1801-02-100036 and 1801- 02-100037; Classification of Men's Shorts; Swimwear; Drawstring; Elastic Waistband; Designed and Constructed for Swimming; Untimely Filing of Protest - United States International Trade Commision Rulings

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HQ 966336

October 21, 2003

CLA-2 RR:TC:TE 966336 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1020; 6203.43.4030

Port Director
Customs and Border Protection
1624 East Seventh Avenue, Suite 101
Tampa, Florida 33605

RE: Application For Further Review of Protest Numbers 1801-02-100036 and 1801- 02-100037; Classification of Men's Shorts; Swimwear; Drawstring; Elastic Waistband; Designed and Constructed for Swimming; Untimely Filing of Protest

Dear Sir:

This is in response to the request for further review of two protests filed on June 10, 2002, by the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, on behalf of their client, Athco, Inc. Protest 1801-02-100036 deals with one entry, 1801-02-100037 deals with four entries. The merchandise was entered as men’s swimwear, of man-made fibers, in subheading 6211.11.1010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), requiring a visa in category 659. Customs and Border Protection (CBP) determined that the goods were classifiable as men's shorts in subheading 6203.43.4030, HTSUSA, requiring a visa in category 647. A demand to redeliver the merchandise for failure to present category 647 visas was issued on April 10, 2002, and is the subject of protest number 1801-02-100036. The demand to redeliver merchandise imported on the first of the four entries subject of protest number 1801-02-100037, was issued on March 11, 2002. A demand to redeliver the merchandise imported on the remaining entries subject of this protest was issued on April 22, 2002. The demands for redelivery were protested on June 10, 2002. It is claimed the proper classification of these garments is as men’s woven man-made fiber swimwear, in subheading 6211.11.1010, HTSUSA, and that the demands for redelivery should be cancelled.

As provided for in 19 U.S.C. 1514, (with certain exceptions not applicable in this matter) certain listed decisions (including the legality of all orders and findings entering into the same) of the Customs Service (now, Customs and Border Protection) are final and
conclusive on all persons unless a protest is filed in accordance with section 1514, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28, United States Code.

Thus, a protest must be based on, or in response to, a decision made by Customs and Border Protection (CBP). Such decisions are: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under [19 U.S.C. 1337]; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under [19 U.S.C. 1520(c)]. 19 U.S.C. 1514.

The procedures for filing a protest of one of the above decisions are provided in 19 U.S.C. 1514(c). Section 1514(c)(3) provides that a protest of a decision, order, or finding described in section 1514(a) shall be filed with Customs within 90 days after but not before the notice of liquidation or reliquidation or the date of the decision as to which protest is made (if the notice of liquidation or reliquidation is inapplicable).

One entry included in Protest 1801-02-100037 was the subject of a notice to redeliver issued on March 11, 2002. Customs Form 19 reflects that your office received the Protest against this and the other 3 notices to redeliver the merchandise on June 10, 2002. Pursuant to 19 CFR 174.12(f) "The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed." Thus, the protest of the notice to redeliver was filed on June 10, 2002, 91 days after the date of the notice to redeliver, March 11, 2002.

The protest against the demand for redelivery of March 11, 2002, is untimely and the relief requested for the entry subject to that notice is denied.

For an example of the judicial treatment of a protest filed one day after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 23d 406 (1991).

Our decision on the protests filed against the notices to redeliver the remaining entries follows.

FACTS:

Altho, Inc. imports men's shorts and sells them to various retailers such as K-Mart, Wilson and Mervyns. The styles at issue are various Starter brand styles. They are all made in Sri Lanka

A number of samples were submitted with the Protests. The Starter garments submitted are style numbers 102, 103, 105, 106, 115, 200, 203, and 309. Although style number 105 is listed as part of the Protest, no sample of style 105 was received by this office, however in the documents submitted it is described as not having an elasticized waistband through which a drawstring is threaded. We note also that style 115 was reclassified by CBP as swimwear. Accordingly, style number 115 will not be part of this protest decision.

All of the garments submitted are made of lightweight 100 percent polyester woven fabric with lightweight knit mesh liners. With the exception of style number 102, all the Starter styles have fully elasticized waistbands. Styles 200, 203, 309, 103, and 106 have an elastic cord with a plastic stopper threaded through the waistband.

Style 102 has a mock fly front and a waistband, the rear six inches of the 32-inch waistband is elasticized. A web belt with plastic buckle is threaded through the entire waistband. The garment has two cargo style pockets with flaps, and a hook and loop fabric tape closure. These pockets each have one grommet hole for drainage. One cargo style pocket straddles each side seam. One of the cargo pockets contains an elastic cord loop attached to the flap. The garment has side seam pockets with mesh liners. There is a STARTER label sewn into the outside front of the waistband.

Style 103 has an elasticized waistband with elastic cord with a plastic stopper threaded through it, two side seam pockets with mesh liners and hook and loop fabric tape closures. There is a fabric loop attached to the outside of each pocket. The garment has a rear patch pocket with one grommet hole for drainage, hook and loop fabric tape closure, and the word STARTER embroidered on the outside of the pocket.

Style 106 has an elasticized waistband. On the front portion of the waistband, an elastic cord with a plastic stopper is attached at a spot approximately five inches distant from each other. The waistband is sewn closed at the cords attachment points, permitting the cord to tighten only the front five inches of the waistband. The cord is threaded back through the front outer portion of the waistband forming a two-grommet tie closure. The garment has an inseam pocket on the front thigh with a flap, and a hook and loop fabric tape closure. This pocket has neither a mesh liner nor a grommet hole for drainage. The garment has a rear patch pocket with two grommet holes for drainage, hook and loop fabric tape closure, and the word STARTER embroidered on the outside of the pocket. There is a fabric loop attached to the outside of each of the pockets. The
symbol for Starter brand and the word STARTER are embroidered on either side of the front of the garment.

Style 200 has an elasticized waistband through which an elastic cord with a plastic stopper is threaded. The garment has one cargo style pocket with flap, and a hook and loop fabric tape closure. The pocket has two grommet holes for drainage. The cargo style pocket straddles one side seam. The symbol for Starter is embroidered on the pocket's flap. The garment also has side seam pockets with mesh liners.

Style 203 has a mock fly front and an elasticized waistband through which an elastic cord with a plastic stopper is threaded. The garment has two cargo style pockets with flaps, and a hook and loop fabric tape closure. An elastic cord with a plastic stopper is threaded through the pocket flaps. These pockets each have two grommet holes for drainage. One cargo style pocket straddles each side seam. The symbol for Starter is embroidered on one of the pocket flaps. The garment also has side seam pockets with mesh liners.

Style 309 has a mock fly front and an elasticized waistband through which an elastic cord with a plastic stopper is threaded. The garment has one cargo style pocket with a flap, a grommet hole for drainage, and a hook and loop fabric tape closure. The cargo style pocket straddles one side seam. The garment also has side seam pockets with mesh liners. The symbol for Starter is embroidered on the bottom of one leg of the garment.

ISSUE:

Whether the notices to redeliver were proper?

Whether the submitted samples are properly classified as men's swimwear, heading 6211, HTSUS, or men's shorts, heading 6203, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule 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.

In an informed compliance publication, "Apparel Terminology under the HTSUS," dated November, 2000, Customs provided basic definitions of textile terms which are commonly utilized in the HTSUS and by the trade community. These definitions are not intended to be definitive but rather to provide a basic guideline for classification purposes. In the informed compliance publication, shorts and swimwear are defined as:

Shorts (6103, 6104, 6203, 6204)- are trousers which do not cover the knee or below.

Swimwear (6112, 6211)- is a term referring to garments designed for swimming. Included in this term are swim trunks, which usually have an elasticized waist with a drawstring threaded through it, and a full lightweight support liner. Garments that cannot be identified specifically as swim trunks will be considered shorts. Multiple-use "sports" or "athletic" shorts that bear a close resemblance to swim trunks and are designed for running, team sports etc. are not considered swimwear.

See, U.S. Customs Service, What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUS. 34 Cust. B. & Dec. 52, 153 (Dec. 27, 2000).

Furthermore, in circumstances such as these, where the identity of a garment is ambiguous for classification purposes, reference to The Guidelines for the Reporting of

Imported Products in Various Textile and Apparel Categories, CIE 13/88, (“Guidelines”) is appropriate. The Guidelines were developed and revised in accordance with the HTSUSA to ensure uniformity, to facilitate statistical classification, and to assist in the determination of the appropriate textile categories established for the administration of the Arrangement Regarding International Trade in Textiles.

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. (We note that under the HTS "principal use" replaced "chief use".) 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 or not conclusive, we then look to the design, manufacture, marketing or advertising; intended use of the garment and principal use of the garment for guidance.

All of the samples before us have mesh inner liners, they therefore meet the Hampco criteria that they have an inner lining of lightweight material.

In the case of the subject merchandise, it is apparent that the submitted samples except for Starter styles 102 and 105, have a fully elasticized waistband. We note that although there is no requirement that the entire waistband be elasticized (HQ 087264, dated June 13, 1990 and HQ 965981, dated March 3, 2003) it is our view that at least 1/2 of the waistband must be elasticized. In Starter style 102 only six inches of the 32-inch waistband are elasticized--this is less than 1/2 of the waistband. Starter Style does not have an elasticized waistband. Starter styles 102 and 105 do not conform to the criteria of Hampco that the waistband of a swimwear garment must be elasticized. The remaining samples do meet this portion of the first criteria.

Accordingly, Starter styles 102 and 105 do not meet the Hampco criteria for classification as swimwear. We therefore find that the Protestant's claim that the notice to redeliver entries importing style numbers 102 and 105 was improper is without merit

We must then ascertain whether the other garments which are subject to the protests before us have a "drawstring threaded through the elasticized waistband". Without a functioning drawstring, the garments do not satisfy the Hampco test. It is your belief that the elastic cords with plastic stoppers contained on a number of the Starter brand garments are not drawstrings. The American Heritage Dictionary of the English Language, New College Edition, published by Houghton Mifflin Company, 1976 edition, at page 397, defines a drawstring as "A cord or ribbon run through a hem or casing and pulled to tighten or close an opening." Nothing in the definition precludes the cord or ribbon from being made of rubber or elastic, so long as it serves to tighten the entire span of the waistband, that the tightening provided by the cord is not minimal, and thus serves the function of a drawstring. In our view the elastic cord does all of these things, while the plastic stoppers hold the tightening in place. The waistband construction is adapted for swimming; the tightening provided by the plastic tab and elastic cord is not minimal and serves the function of a drawstring, which is to adjust the size of the waistband. Accordingly, Starter styles 103, 200, 203, and 309, all of which have an elastic cord with plastic stopper threaded through the waistband, meet the criteria of having a functional drawstring threaded through the elasticized waistband.

The cord on Starter style 106 is only on the front five or six inches of the waistband. The ends of the cord are then threaded and drawn through 2 spaced grommets on the center of the front of the waistband before the ends are tightened. The cord on the garment serves to tighten only the front five inches not the entire span of the waistband, while keeping the lace-up front of the waistband relatively flat. The tightening provided by the cord is minimal and barely serves the function of adjusting the size of the waistband. It is therefore our view that the garment does not have a fully functional drawstring. The garment therefore does not meet the criteria of having a functional drawstring threaded through the elasticized waistband.

Accordingly, Starter style 106 does not meet the Hampco criteria for classification as swimwear. We therefore find that the Protestant's claim that the notice to redeliver entries importing style number 106 was improper is without merit

CBP has been consistent in ruling that even in those instances where the first two factors enumerated by the court in Hampco are present, the third factor (the garment is designed and constructed for swimming) must still be present. Where 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).

The Starter garment styles 103, 200, 203, and 309 are made of a woven outer shell fabric and possess a mesh liner. The fabrics used to construct these articles are relatively lightweight, quick drying, and will not retain an inordinate amount of water. The garments' outseam length is not so long so that it inhibits swimming. The pockets have been constructed to facilitate drainage. In addition, submitted advertising indicates that the garments are sold and advertised as swimwear. Accordingly, these features and the advertising indicate that these Starter garments have been designed principally for swimming and thus qualify as men's swimwear in heading 6211, HTSUSA. We therefore find that Protestant's claim that the demand for redelivery of these styles 103, 200, 203, and 309 was improper is valid.

HOLDING:

The protest should be in DENIED in part, and GRANTED in part.

The protest of the demand for redelivery dated March 11, 2002, was filed on June 10, 2002, 91 days after the date of the notice to redeliver. It is therefore untimely and the relief requested is denied.

The submitted Starter shorts style numbers 103, 200, 203, and 309 meet the Hampco criteria for classification as swimwear. We therefore find that Protestant's claim that the demands for redelivery of these items were improper is valid. The submitted Starter shorts style numbers 103, 200, 203, and 309 are, as claimed by the Protestant, properly classified in subheading 6211.11.1010, HTSUSA, the provision for "Track suits, ski-suits and swimwear; other garments: Swimwear: Men's or boys': Of man-made fibers: Men's", textile category 659, dutiable at the column one rate of 28.2 percent ad valorem at time of entry.

The submitted Starter shorts style numbers 102, 105, and 106 do not meet the Hampco criteria for classification as swimwear. We therefore find that the Protestant's claim that the demands for redeliver of these items were improper is without merit. The submitted Starter shorts style numbers 102, 105, and 106 are properly classified under subheading 6203.43.4030, HTSUSA, which provides for men’s woven shorts of synthetic fibers. The shorts were dutiable at the general column one rate of duty of 28.3 percent ad valorem at time of entry. The textile category is 647

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Bureau of

Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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