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HQ 965302





August 28, 2002

CLA-2 RR:CR:TE 965302 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

Alan R. Klestadt, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP 245 Park Avenue
New York, New York 10167-3397

RE: Reconsideration of New York Ruling (NY) H84867; Classification of Men's Woven Nylon Swimwear, Heading 6211, HTSUS; Shorts, Heading 6203, HTSUS

Dear Mr. Klestadt:

This ruling is in response to your letter dated October 16, 2001, in which you request reconsideration of New York Ruling Letter (NY) H84867, dated August 15, 2001, concerning the tariff classification of a garment, style number 1805018, issued to the Venator Group, Inc. In NY H84867 the garment was classified under subheading 6203.43.4030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for men's shorts, dutiable at the 2001 rate of 28.4 percent ad valorem. The textile quota category designation was determined to be 647.

You now describe the garment as a men's short swim trunk, and request reclassification as men's swimwear in subheading 6211.11.1010, HTSUSA, with the applicable quota category being 659. A sample was submitted with your request.

FACTS:

The garment, style number 1805018, is a pair of men's shorts with a woven nylon shell and a knit mesh liner made of 100% polyester. The garment has a relaxed fit and measures 21 inches from the waist to the hem of the leg. The garment features a one and a quarter inch enclosed shirred elasticized waistband with a functional drawstring on the inside, and hemmed leg bottoms. The garment has five pockets-two side seam pockets with mesh linings; one pocket on each of the side legs of the garment, and an interior mesh coin pocket. Each of the pockets on the side legs has a partial mesh lining and is secured with a zipper closure, one
of these pockets is flapped. You indicate that some versions of this style will feature pockets with VELCRO-type closures instead of zipper closures. The garment will be produced in Thailand.

In the original ruling request the garment was described simply as men's 100% woven nylon shorts. You now describe the garment as a "swim trunk" and advise that it is constructed and designed for swimming using a lightweight, quick drying nylon fabric that is characteristic of swimwear. The style also features a mesh lining, as well as pockets with a mesh backing to allow for water drainage. You also indicate that the style is marketed and sold as swimwear. You state the garment will be sold in Footlocker stores, which you indicate specializes in athletic wear and carries a wide variety of swim accessories in addition to swimsuits. You submit a copy of what you indicate is a hangtag specifying that this garment is intended for use as a swim trunk, it is said to outline the garment's swimsuit features, such as the elasticized waist, drawstring, and mesh lined pockets.

ISSUE:

Whether the submitted sample is properly classified as men's swimwear, heading 6211, HTSUS, or a men's short, 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, 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 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.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, November 23, 1988, also provide guidelines in classifying garments as either men’s shorts or swimwear. 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.

In Headquarters Ruling Letter (HQ) 081477, dated March 21, 1988, we stated that in order to determine whether a garment is designed and constructed for swimming, we will first look at the appearance of the garment. If the appearance is inconclusive, the following evidence will be considered: the way in which the garment has been designed, manufactured, marketed or advertised; the way in which the manufacturer or importer intends the garment to be used, and the way in which a garment is chiefly used. A classification determination is thus based on a two-prong analysis, that is, first an examination of the physical features of the garment, and in circumstances where that proves inconclusive, an examination of the supporting evidence.

The garment at issue has an elasticized waistband with a functional drawstring. Thus, this submitted sample seems to meet the first of the three criteria enumerated by the court in Hampco.

However, in finishing its second criteria, the court stated in regard to the lightweight material, “namely nylon tricot”. "Namely" is defined in Webster’s II New Riverside University Dictionary (1984) at 783, as “That is to say: SPECIFICALLY.” In other words, in referring to an inner lining of lightweight material the court was referring specifically to a lining of nylon tricot.

Customs does not interpret the court’s wording so narrowly as to say that for a garment to be considered swimwear its inner lining must be of nylon tricot. See, HQ 957409, dated January 27, 1995. However, we do interpret the court’s language to mean that a lightweight inner lining of nylon tricot is generally indicative of swimwear. When determining the classification of a garment with an inner lining of material other than nylon tricot, Customs will consider the material from which the lining is made and whether it is of a type generally used in the manufacture of swimwear. This consideration goes to the heart of the court’s third criteria, i.e., that the garment be designed and constructed for swimming.

The garment at issue has an inner mesh lining which although made from polyester, is lightweight and appears to be the type generally used in the manufacture of swimwear. We therefore find that the garment’s inner lining is indicative of swimwear.

Thus, style 1805018 meets the first and second criteria established by the court in Hampco. The last criteria, whether the garment was designed and constructed for swimming, is not so easily determined.

The garment at issue has numerous pockets, a feature not generally associated with swimwear. However, Customs has issued a number of rulings on garments designed with numerous pockets and determined that similar garments were properly classified as swimwear. See, HQ 956299, on May 13, 1994, and HQ 957409, dated January 27, 1995. The garment at issue in HQ 956299 was described therein as follows:

The submitted sample, style 51045, has a woven shell comprised of 60 percent cotton and 40 percent polyester, as well as a 100 percent nylon mesh liner. The sample is a size medium and measures approximately 18 inches from the top of the waistband to its hemmed bottom. This item possesses side seam pockets with mesh near the bottom seam to facilitate drainage. In addition, it has a rear patch pocket and a flap simulating a flapped pocket on the lower left leg. The garment features a fully elasticized waistband encircled with five tunnel belt loops, a woven nylon belt with a plastic slide closure and a functional drawstring. It does not possess a fly.

In HQ 956299, Customs stated:

In this instance, we conclude that style 51045 appears to be designed principally for swimming. The fabric used to construct this article is relatively lightweight and will
not retain an inordinate amount of water. The garment's outseam length is not so long so that it inhibits swimming. The presence of pockets and belt loops does not preclude classification as a swimsuit. See, HRL 087357, dated June 25, 1990; HRL 087264, dated June 13, 1990. The side seam pockets have been designed so as to facilitate drainage. Although the presence of a belt is not normally associated with swimwear, in this instance it is composed of lightweight, non- absorbent materials. Hence, it will not be cumbersome when bathing. Finally, the absence of a fly front renders it less likely that the garment will be worn as shorts. Based on the foregoing discussion, style 51045 is classifiable as men's swimwear, pursuant to heading 6211, HTSUSA.

For the same reasons set out in HQ 956299, Customs believes that style 180518 is properly classified as men's swimwear of heading 6211, HTSUSA. In addition, we note that a copy of what is said to be the garment's hangtag indicates that this garment is a "volley swim short" and "all pockets lined with mesh for use in and out of water."

HOLDING:

Based on the additional information submitted, the garment at issue, style 180518, is classified in subheading 6211.11.1010, HTSUS, the provision for " Track suits, ski-suits and swimwear; other garments: Swimwear: Men's or boys': Of man-made fibers: Men's", textile category 659, dutiable at the 2002 column one rate of 28.2 percent ad valorem.

NY H84867 is correct based on the information provided to Customs at the time the classification ruling was requested. It is therefore neither revoked nor amended. A copy of this decision as well as NY H84867 should be presented to Customs upon entry of style 180518.

The designated textile and apparel category may be subdivided into parts. If so, the 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 your client 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 updated weekly and is available for inspection at your client's local Customs office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Custom Service Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.treas.gov.

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

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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