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HQ 964644

February 6, 2002

CLA-2 RR:CR:TE 964644 ASM


TARIFF NO.: 6211.11.8020

Mr. G. S. Middleton

Assistant Manager
Customs & Trade
L.L. Bean, Inc.
Freeport, ME 04033

RE: Request for reconsideration of NY F88406

Dear Mr. Middleton:

This is in response to the letter you submitted on behalf of L.L. Bean, Inc, requesting reconsideration of Customs New York Ruling (NY) F88406 which classified certain boy’s textile shorts under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination and will be returned under separate cover per your request.


The subject garment is identified as a boy’s woven short, “PM92”, which is constructed of 65 percent cotton and 35 percent nylon. It features a 100 percent nylon mesh liner, two mesh fabric flapped cargo pockets with hook and loop closures, elasticized waistband with inner functional drawstring, and hemmed leg openings. At this time, the garment is marketed as sport shorts. Although, at the time of initial importation it was designed, marketed, and intended to be worn as swimwear.

In NY F88406 dated June 15, 2000, the subject garment, PM92, was classified in subheading 6211.11.8020, HTSUSA, as a boy’s swim short with a corresponding textile quota category of 359. At this time, you have noted that tests performed subsequent to the issuance of NY F88406 have revealed that the fabric did not perform up to expectation for swimwear. You now assert that the garment be classified as boy’s active wear, sport short, not intended to be worn as swimwear, and propose classification under subheading 6203.42.4060, HTSUSA.


What is the proper classification for the merchandise?


We note that in L.L. Bean’s original request, the subject article was identified as a “quarry swim short” and it was stated that the garment was designed and would be marketed as swimwear. Subsequent to the issuance of NY F88406, however, the L.L. Bean company determined that the fabric was not suitable for use as swimwear due to the fact that the fabric had not performed up to the company’s expectations. As such, we note that the case of Hampco Apparel, Inc. v. United States, 12 C.I.T. 92 (1988), held that the following three factors must be present if a garment is to be considered swimwear for tariff purposes:
the garment has an elasticized waistband through which a drawstring is threaded the garment has an inner lining of lightweight material, and the garment is designed and constructed for swimming

Initially, the subject merchandise was marketed and intended to be used as swimwear and the design and construction remains unchanged. Thus, the fact that the original marketing strategy proved unsuccessful, and a new marketing approach has been created for this item, does not alter the fact that the garment still meets all three of the Hampco features, albeit, with fabric that did not perform up to the company’s standards.

In view of the foregoing, we are affirming our decision in NY F88406, dated June 15, 2000, which classified the subject merchandise under subheading 6211.11.8020, HTSUSA, which provides for “Track suits, ski-suits and swimwear; other garments: Swimwear: Men’s or boys’: Other, Of cotton: Boys’.”


The subject merchandise is correctly classified in subheading 6211.11.8020, HTSUSA, which provides for, "Track suits, ski-suits and swimwear; other garments: Swimwear: Men's or boys': Other, Of cotton: Boys'.” The general column one duty rate is 7.6 percent ad valorem. The textile category is 359.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director

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