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HQ 968420




October 31, 2006

CLA-2 RR:CTF:TCM 968420 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4030

Ronald L. Wilson, II
Jaco Vida, LLC
3132 Odonnell Street
Baltimore, MD 21224

RE:     Classification of men’ s polyester fabric board shorts by Jaco™

Dear Mr. Wilson:

This is in reply to your electronic ruling request submitted on July 25, 2006 to the National Commodity Specialist Division in which your company requested a binding tariff classification determination under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain men’s board shorts, identified as Item # BS0100. A sample of the subject merchandise was forwarded along with this request for our review.

FACTS:

The submitted sample, which is sized 28-inches in the waist, is constructed in China and is made from 100 percent quick drying, polyester fabric. It features a fly front with a hook and loop closure with a four-grommet lace-up textile tie cord at the waist and a large front pocket with two drainage holes. The pocket is designed to accept a water submersible scuba pocket. The subject merchandise does not have an internal support liner. The waist, which is not elasticized and lacks a threaded drawstring, is specifically designed to allow for tightening of the board short when engaged in water activities by zipping up the Flex Seam zipper which you state takes up to three inches off the waist circumference. You also indicate that the board short is designed, manufactured, marketed and sold to surfers, wakeboarders, water and jet skiers.

ISSUE:

Whether the submitted sample is properly classified as men’s swimwear of heading 6211, HTSUS, or men’s shorts of heading 6203, HTSUS?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. When goods cannot be classified solely on the basis of GRI 1 and if the terms of the headings and any relative section or chapter notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.

Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

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.

The court also considered whether a garment is designed, manufactured, marketed and intended to be used as swimwear. It is noted that although the Hampco decision involved classification of swimwear under 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 the informed compliance publication, "Apparel Terminology under the HTSUS," dated July 2006, CBP defines swimwear as:

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 and Border Protection, What Every Member of the Trade Community Should Know About: Apparel Terminology Under the HTSUS. Revised July 2006 (available at www.cbp.gov).

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.

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 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’s analysis is in fact a two part test that is, (a) an 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.

However, in this case, the subject garment does not meet the Hampco criteria since it does not have an inner lining of lightweight material nor a fully elasticized waistband through which a drawstring is threaded. In addition, the four-grommet lace-up tie cord is not a full drawcord. Moreover, it is unclear that the subject garment is principally for swimming since it appears to be a multi-use garment. As previously noted, CBP recognizes that if garments cannot be recognized as swim trunks, they will be considered shorts. See Apparel Terminology ICP (July 2006).

In light of the foregoing, we will look to the garment’s design, manufacture, and marketing for guidance about its principal use. First, you state that the subject garment is marketed and sold to surfers, wakeboarders, water and jet skiers. You also indicated that you submitted supporting website advertisement/marketing information with your electronic submission. We reviewed your website and note the following description of the merchandise:

6 Feet Under’s are 100% Brushed Polyester for a smooth feel and ultra-fast drying. The 6FU’s come standard with a removable Scuba Pocket™ that is 100% Waterproof to depths of 12 feet to keep your cell, passport, etc. dry while you surf or wake. The 6FU’s give you the loose board short fit on the beach, but with a quick zip on the Flex Seam™ before you surf you don’t have to end up wearing them around your ankles.

We also researched the Internet and located various websites which show similar “Hawaiian-style” surfboard shorts that feature longer leg cut designs. These garments are marketed and displayed for use in such activities as surfing, kayaking, volleyball, beach lounging and swimming. Furthermore, it is noted that although board shorts were historically designed as swimwear, they may be “worn as sportswear or even casual wear by men, women and children.” See “Board Shorts” by Eddie Tobey at www.ezinearticles.com. However, based on a review of your product and other similar board shorts styles, we find them to be multipurpose garments that are designed for use in water sports, for use as casual wear on the beach, to beyond the beach for activities such as hiking and skateboarding.

Notwithstanding the subject garment’s features and your assertion that it is marketed and sold for wear during water sport activities, this does not prove its principal use for swimming. Rather, it is clear that the merchandise is a multipurpose garment. As they are not eo nomine provided in heading 6211 as swimwear, we find them to be classifiable in heading 6203, HTSUSA, as shorts. For other cases which classified similar board shorts, see New York Ruling Letters (NY) J87126, dated August 20, 2003 and NY F80514, dated December 27, 1999; Headquarters Ruling Letters (HQ) 951639, dated July 31, 1992, HQ 955009, dated November 29, 1993, and HQ 966600, dated November 6, 2003.

HOLDING:

The Jaco Vida Boardshorts, identified as style #BS0100, are classifiable in subheading 6203.43.4030, HTSUSA, which provides for “Men’s or boys’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: Other, Shorts: Men’s.” The general column one rate of duty is 27.9 percent ad valorem. The applicable textile category designation is 647.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local CPB office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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