HQ 968310

October 13, 2006

CLA-2 RR:CTF:TCM 968310 TMF

CATEGORY: Classification

TARIFF NO.: 6203.43.4030

Stephen S. Spraitzar,

Law Offices of George R. Tuttle, P.C.

Three Embarcadero Center, Suite 1160

San Francisco, California 94111

RE:     Classification of men' s board shorts

Dear Mr. Spraitzar:

This is in reply to your letter, dated July 11, 2006, in which you
requested on behalf of your client, Fox Racing USA, Inc. of Morgan Hill,
California, a binding tariff classification determination under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of
certain men's board shorts, identified as "Bankvaults Board Short,"
Product Id #41013. A sample of the subject merchandise was forwarded
along with this request for our review.

We received your faxed supplemental submission on October 10, 2006 in
which you requested publication of this determination for public comment
in the [Customs Bulletin]{.underline} since you believe this matter has
significant impact upon members of the trade. However, we are declining
your request because it is our view that the classification of this type
of merchandise has been addressed by Court of International Trade in the
decision of [Hampco Apparel, Inc. v. United States]{.underline}, 12 CIT
92 (1988) and several CBP rulings (e.g., HQ 966600, dated November 6,
2003 and HQ 955009, dated November 29, 1993).

**FACTS:**

The submitted men's sample, which is sized 38-inches in the waist, is
identified as the "Bankvaults Board Shorts" and is constructed of woven
100 percent polyester fabric. It features a front zipper closure with a
textile four-grommet lace-up tie cord and a zippered rear pocket with
three grommets for drainage. The waist of the short is not elasticized
and does not have a drawstring threaded through it. There is no internal
support liner. The short is used when a person is engaged in surfing,
other boarding activities, and similar beach activities.

In your submission, you state that the polyester microfiber fabric does
not retain water and is capable of drying quickly after being wet. You
discussed the subject garment's care label which indicates that no
ironing is required, which you assert is a care feature that is
consistent with swimwear merchandise. You also indicated that the
subject garment does not need an inner mesh liner since its longer leg
and closer-fitting features prevent exposure while swimming and provides
appropriate crotch support.

You indicate that the merchandise will be sold with a "wax comb"
accessory for use in roughing up the wax surface of the surfboard to
provide greater foot traction in the zippered back pocket. The zipper
closure allows the wearer to keep small valuables in the pocket without
loss or theft.

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]{.underline}, 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]{.underline} 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. *See* HQ 966600,
dated November 6, 2003*; see also* [Intercontinental Marble Corp. v.
United States]{.underline}**,** 381 F.3d 1169, 1173*, citing to* H.R.
Conf. Rep. No. 100--576, at 549-50 (1988), reprinted in 1988 U.S.C.C.A.N
1547, 1582-83.

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]{.underline}. 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]{.underline}, CIE 13/88, ("[Guidelines]{.underline}")
is appropriate. The [Guidelines]{.underline} 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]{.underline} 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]{.underline} 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 Sep-tember 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]{.underline} 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]{.underline} criteria since it does not have an inner lining of
lightweight material nor a fully elasticized waistband through which a
drawstring is threaded. 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]{.underline} 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 commonly sold at
stores that specialize in outdoor sports, such as surfing stores, etc.,
and at certain stores in the section where swimwear is offered for sale.
In your submission, you provided a CD--ROM that depicts the instant
garment being worn during surfing and fishing activities. We
cross-referenced the Internet and located various websites, which show a
similar Fox Racing board short and other similar designed
"Hawaiian-style" surfboard shorts that also feature the longer leg cut
designs. These garments are marketed and displayed for use in such
activities as motor sports[^1], 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
review of your client's product and other similar board shorts styles,
these are multipurpose garments 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 swimming, this does not prove its principal
use for swimming. Rather, it is clear that the merchandise is a
multipurpose garment. It is possible that these garments might be worn
for swimming, but CBP believes such a use would be a fugitive one and
would not be the use for which the garment is primarily purchased or
designed. In regard to use, the Court in [Hampco]{.underline}, 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. [Trans‑Atlantic Co. v. United
> States]{.underline}, 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.

Based on the aforementioned, the subject board shorts are not swimwear
of heading 6211, but are 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:**

By application of GRI 1, the Bankvaults Board Shorts, identified as
style #41013, are classifiable in heading 6203, HTSUS. They are provided
for 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
column one, general 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]{.underline}. 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

[^1]: Note: We notice a Fox Racing "Boomerang Board short" on
    motorworldracing.com website, which sells casual apparel for use
    during various types of motor sports activities.