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HQ 966600




November 6, 2003

CLA-2 RR:TC:TE 966600 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4040

Port Director
Customs and Border Protection
301 E. Ocean Bl'vd, Suite 1400
Long Beach, CA 90802

RE: Application For Further Review of Protest Numbers 2704-03-101353; Classification of Boys' Shorts; Swimwear; Drawstring; Designed and Constructed for Swimming

Dear Sir:

This is in response to the request for further review a protest filed on June 6, 2003, by the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, on behalf of their client, Impex Overseas Inc., Protest 2704-03-101353. The merchandise was entered as boys' swimwear, of man-made fibers, in subheading 6211.11.1020, 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 6203.43.4040, HTSUSA, requiring a visa in category 647. A demand to redeliver the merchandise for failure to present category 647 visas was issued on March 10, 2003, and is the subject of protest number 2704-03-101353. The demand for redelivery was protested on June 06, 2003. It is claimed the proper classification of these garments is as boys' woven man-made fiber swimwear, in subheading 6211.11.1020, HTSUSA, and that the demand for redelivery should be cancelled.

Our decision on the protest follows.

FACTS:

The submitted garment, style 81003 WM is a boys' short made of 100 percent polyester woven fabric with a knit mesh liner. The pull-on garment has a back patch pocket with an interior hook and loop fabric tape closure. The pocket has one grommet hole for drainage. The garment has a front interior mesh coin pocket. The garment has a mock fly front and an elasticized waistband. On the front outer portion of the waistband, a cord forms a four-grommet lace-up tie closure, permitting the cord to tighten the front three inches of the waistband. The cord itself however does not extend through any portion of the waistband. The garment is produced in Bangladesh.

ISSUE:

Whether the submitted sample is properly classified as boys swimwear, heading 6211, HTSUS, or boys' 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.

The sample before us has a mesh inner liner; it therefore meets the Hampco criteria that it has an inner lining of lightweight material.

The submitted sample has a fully elasticized waistband. It therefore conforms to the criteria of Hampco that the waistband of a swimwear garment must be elasticized.

We must then ascertain whether the garment which is subject to the protest before us has a "drawstring threaded through the elasticized waistband". Without a functioning drawstring threaded though the waistband, the garment does not satisfy the Hampco test. Examination has revealed that the sample before us does not have a drawstring threaded through the waistband. There is a cord that is threaded and drawn through 4 spaced grommets on the exterior of the center of the front three inches of the waistband. This cord does not go through the waistband and serves to tighten only the front three inches not the entire span of the waistband. The tightening provided by the cord is minimal and barely serves any function of adjusting the size of the waistband. It is therefore our view that the cord on the garment does not serve the function of a drawstring.

In the instant case, it is apparent that there is no drawstring threaded through an elasticized waistband. Without a drawstring, the garment does not satisfy the Hampco test.

Customs has classified similar merchandise in the past. In HQ 962002, dated February 22, 2002, HQ 960646 dated December 16, 1997, HQ 961352 dated February 17, 2002, and HQ 951077 dated April 21, 1992, garments designed similarly to the submitted garment, i.e., constructed with lightweight woven outershell fabric (which will not retain an inordinate amount of water), elasticized waistbands, pockets, mesh liners, and without a drawstring threaded through the elasticized waistband, were classified as shorts. In addition, in HQ 962636, dated June 3, 1999, a similar garment, without a drawstring drawn through the waistband but with a webbed belt that provided minimal tightening, was classified as shorts. The descriptions of the above garments are similar in many respects to the garment at issue here. It is our opinion that any variation in construction, on this particular garment, is not significant enough to warrant different classification. In the instant case, it is apparent that the submitted sample 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.

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). As such, CBP 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

Insofar as the design, manufacture, marketing or advertising is concerned, Protester states that the garment is constructed using a lightweight, quick drying polyester fabric that is characteristic of swimwear and that the pocket features a grommet hole to facilitate water drainage. Protester avers that the style at issue is bought and sold as swimwear in the industry. In support thereof, a copy of a purchase order describing the merchandise as "boys' swim shorts" was submitted, as was a commercial invoice describing the merchandise purchased as boys' swim shorts. Customs recognizes that internal documentation and descriptions on invoices may be self-serving as was noted by the court in Regaliti, Inc. v. United States, 16 CIT 407 (May 21, 1992). No marketing or advertising has been submitted to indicate that the garment is sold and advertised as swimwear. In addition, no evidence of intended or principal use of the garment as swimwear has been provided.

Several factors lead us to the belief that garment 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. In addition, the care label in the garment's waistband indicates that the garment is 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, November 23, 1988, it was recognized that “(G)arments which cannot be recognized as swim trunks will be considered shorts.”

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 or designed.

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.

Inasmuch as the sample does not have a drawstring threaded through the waistband, it does not meet all three Hampco criteria required for classification as swimwear. It is therefore classifiable as shorts under heading 6203, HTSUSA.

We therefore find that the Protestant's claim that the notice to redeliver was improper is without merit.

HOLDING:

The protest should be in DENIED.

The submitted shorts do not meet the Hampco criteria for classification as swimwear. We therefore find that the Protestant's claim that the demand for redeliver was improper is without merit. The submitted shorts style number is properly classified under subheading 6203.43.4040, HTSUSA, which provides for boys' 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 CBP 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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