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HQ 966759




January 23, 2004

CLA-2 RR:TC:TE 966759 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

Ms. Linda Moyer
Associated Merchandising Corporation
500 Seventh Avenue
New York, NY 10018

RE: Modification of New York Ruling (NY) I80536, dated April 23, 2002; Men’s Woven Swimwear, Heading 6211, HTSUS; Shorts, Heading 6203, HTSUS

Dear Ms. Moyer:

This is in reference to New York ruling letter (NY) I80536, issued to you on April 23, 2002, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of two pairs of men's shorts. We have reconsidered NY I80536 and found it to be partially in error.

In NY I80536, we found that a garment identified as style S3S-A1 was classified in subheading 6203.43.4030, HTSUSA, as men's shorts. We have reviewed the matter and believe that the correct classification of the garment is in subheading 6211.11.1010, HTSUSA, as men's swimwear. Therefore, this ruling modifies NY I80536.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed modification of NY I80536, was published on December 10, 2003, in the Customs Bulletin, Volume 37, Number 50. No comments were received in response to this notice.

FACTS:

The garment involved, style S3S-A1, is a pair of men's shorts made of 100 percent woven nylon fabric with an inner lining of knit mesh fabric. It features as elasticized waistband with an elastic cord with a barrel clasp running through the entire length of
the waistband, two side slash pocks with mesh pocket lining, a side seam cargo pocket with a flap which closes by means of a hook and loop fabric, and grommets for drainage.

ISSUE:

Whether style S3S-A1 is 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 therein 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 guidance 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 an informed compliance publication, "Apparel Terminology under the HTSUS," dated November, 2000, Customs and Border Protection (CBP) 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).

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. (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.

Style S3S-A1 has a mesh inner liner, it therefore meets the Hampco criteria that it has an inner lining of lightweight material.

In the case of style S3S-A1, it has 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.

We must then ascertain whether the garment has a "drawstring threaded through the elasticized waistband". Without a functioning drawstring, the garment does not satisfy the Hampco test. 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 barrel clasp holds the tightening in place. The waistband construction is adapted for swimming; the tightening provided by the elastic cord and barrel clasp is not minimal and serves the function of a drawstring, which is to adjust the size of the waistband. Accordingly, style S3S-A1, which has a elastic cord with barrel clasp threaded through the waistband, meets the criteria of having a functional drawstring threaded through the elasticized waistband.

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 garment is made of a woven nylon outer shell fabric and possesses a mesh liner. The fabrics used to construct this article are relatively lightweight, quick drying, and will not retain an inordinate amount of water. The pockets have been constructed to facilitate drainage. These features indicate that this garment has been designed principally for swimming and thus qualifies as men's swimwear in heading 6211, HTSUS.

HOLDING:

The garment, style number S3S-A1, meets the Hampco criteria for classification as swimwear. It is 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 percent ad valorem.

NY I80536, dated April 23, 2002, is hereby MODIFIED.

In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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