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HQ W968300




February 8, 2007

CLA-2 RR:CTF:TCM W968300 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4040

Kevin Maher
C-Air Customhouse Brokers
International Freight Forwarders
181 South Franklin Avenue
Valley Stream, NY 11581

RE: Boys’ board shorts from China; Reconsideration of New York Ruling (NY) M83468

Dear Mr. Maher:

In a letter sent to United States Customs and Border Protection (CBP) on behalf of your client C-Life, dated June 12, 2006, you requested reconsideration of New York Ruling (NY) M83468, dated May 18, 2006. Your letter was referred to this office for a response.

FACTS:

The subject merchandise, style 040606C, is a pair of unlined boys’ shorts made entirely from woven polyester. The shorts have an elasticized waist with an adjustable tunnel drawstring and a false fly front. The shorts also feature side seam pockets and rear patch pockets that are secured by Velcro™ type closures. The hangtag describes the item as “swim shorts without lining.”

In NY M83468, CBP classified the subject shorts under subheading 6203.43.4040, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “[m]en’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, breaches and shorts: Of synthetic fibers: Other: Other: Other: Other: Shorts: Boys’: Other.” In the request for reconsideration, you argue that this classification was in error. However, you have not suggested an alternative classification. We therefore refer to the original ruling request, dated May 12, 2006, in which C-Life argued that subheading 6210.40.5031, HTSUS, which provides for “[g]arments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other men’s or boy’s garments: Of man-made fibers: Other: Trousers,
breeches and shorts: Ski/snowboard pants,” was the proper classification. We must also consider whether the article is classifiable as “swimwear” as indicated by the garment’s hangtag.

ISSUE:

What is the proper classification under the HTSUS for the boys’ shorts?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUSA. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

It is undisputed that the subject merchandise is classifiable under chapter 62, HTSUS, which provides for “[a]rticles of apparel and clothing accessories, not knitted or crocheted.” The issue arises at the 4-digit heading level. The headings under consideration are as follows:

6203 Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear):

6210 Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907:

6211 Track suits, ski-suits and swimwear; other garments:

In their original ruling request, C-Life argued that the subject boy’s shorts are properly classified under heading 6210, HTSUS. Classification therefore requires a preliminary analysis of heading 5903, HTSUS. If the shorts are made from fabric classifiable in heading 5903, HTSUS, they are eligible for classification under heading 6210, HTSUS. Chapter 59, Note 2 provides, in pertinent part:

Heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye; for the purpose of this provision, no account should be taken of any resulting change in color.

(Emphasis added)

It is undisputed that the subject fabric has been coated with a polyurethane layer. At issue is whether this coating is visible to the naked eye. In making such determinations, CBP may consider a number of factors, including:

Whether the coating has visibly altered the surface of the fabric (Headquarters Ruling (HQ) 967884, dated October 26, 2005); Whether the plastic is visible in the interstices of the fabric (See HQ 961172, dated August 6, 1998); Whether the thread or weave is blurred or obscured, (HQ 089772, September 11, 1991); and Whether the surface of the fabric is leveled or smoothed and whether the coating itself creates a distinct visible pattern (Id.).

These factors are not exclusive and none is determinative.

The subject fabric does not satisfy any of the above indicia. The polyurethane layer has not altered the surface of the fabric or the weave, nor is it visible in the interstices of the fabric. Furthermore, the coating has not created a new and distinct pattern on the surface of the fabric. The fabric is therefore excluded from heading 5903, HTSUS, and the finished garment, ipso facto, is excluded from heading 6210, HTSUS.

We next consider whether the merchandise is classifiable as swimwear under heading 6211, HTSUS. In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade (CIT) enumerated the three factors that identify a garment as swimwear. They are:

An elasticized waistband through which a drawstring is threaded; An inner lining of lightweight material, namely, nylon or tricot; and The garment is designed and constructed for swimming.

To satisfy this test, the garment must meet all three factors. See HQ 086439, dated May 23, 1990 (Garment with a fully elasticized waist, drawstring and lightweight liner met the general criteria for use as swimwear); and HQ 088600, dated May 15,1991 (Garment with a knit support liner, partially elasticized waistband and fully functional drawstring classified in heading 6211, HTSUS). The subject shorts only satisfy the first factor – they do feature an elasticized waistband through which a drawstring is threaded. They are unlined, however, and are not obviously designed for swimming. They are therefore excluded from heading 6211, HTSUS.

According to CBP, “[g]arments that cannot be identified specifically as swim trunks will be considered shorts” See Informed Compliance Publication, "Apparel Terminology under the HTSUS," dated July 2006. The subject merchandise is therefore classifiable under heading 6203, HTSUS, as boy’s shorts. See HQ 966600, dated November 6, 2003 (Boys’ shorts excluded from heading 6211, HTSUS, are classifiable under heading 6203, HTSUS).

HOLDING:

For the foregoing reasons, the subject board shorts are classifiable under subheading 6203.43.4040, HTSUSA, which provides for “[m]en’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, breaches and shorts: Of synthetic fibers: Other: Other: Other: Other: Shorts: Boys’: Other.” The general, column one rate of duty is 27.9 percent ad valorem.

Style 040606C falls within textile category 647. 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.

EFFECT ON OTHER RULINGS:

NY M83468 is AFFIRMED.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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