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]{.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.\
\
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]{.underline} 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]{.underline}. 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]{.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.

The sample before us has a mesh inner liner; it therefore meets the
[Hampco]{.underline} 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]{.underline} 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]{.underline} 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]{.underline} 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]{.underline}, there is no drawstring
threaded through an elasticized waistband. Without a drawstring, the
garment does not satisfy the [Hampco]{.underline} test.

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
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]{.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

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]{.underline}, 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]{.underline}, there is no drawstring
threaded through an elasticized waistband. Without a drawstring, the
garment does not satisfy the [Hampco]{.underline} 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
multi‑purpose garment whose principal use will not be as swimwear. In
[The Textile Category Guidelines]{.underline}, 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]{.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]{.underline} [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.

Inasmuch as the sample does not have a drawstring threaded through the
waistband, it does not meet all three [Hampco]{.underline} 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]{.underline} 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

Commercial Rulings Division