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HQ 965981

March 3, 2003

CLA-2 RR:TC:TE 965981 SG


TARIFF NO.: 6211.11.1010

Ms. Amanda Wilson
Dillard's Customs Compliance Dept.
Dillard's Inc.
1600 Cantrell
Little Rock, Arkansas 72201

RE: Modification of New York Ruling (NY) I85950, dated September 13, 2002; Men's woven swimwear, heading 6211, HTSUS; shorts, heading 6203, HTSUS

Dear Ms. Wilson:

This is in response to your letter dated October 8, 2002, in which you ask the Customs Service to reconsider, in part, New York ruling (NY) I85950, issued to you on September 13, 2002, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a men's short with attached drawstring pouch, designated as Style S35MX402. The garment was classified under subheading 6203.43.4030, HTSUSA, in the provision for men's shorts. It is your opinion that the subject merchandise should be classified as men's swimwear in subheading 6211.11.1010, HTSUSA. We have reviewed that ruling and found it to be partially in error. Therefore, this ruling modifies NY I85950.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI, a notice was published on December 26, 2002, in the CUSTOMS BULLETIN, Volume 36, Number 52, proposing to modify NY I85950, dated September 13, 2002, and to revoke any tariff treatment pertaining to the tariff classification of men's shorts. Two comments were received in response to this notice.


The submitted garment, Style S35MX402, is a pair of men's shorts with a woven 100% nylon outer shell and a knit mesh liner. The garment has a relaxed fit and measures approximately 19 inches from the waist to the hemmed bottom of the leg. The garment has a fly front, which is fastened secure by means of a hook and loop fabric tape. The waistband is partially elasticized (the back portion) and has an interior drawstring inserted into the waistband. On the front inner portion of the waistband, the drawstring
exits at two spots approximately six inches distant from each other and is then threaded back through the front outer portion of the waistband forming a four grommet lace-up tie closure. The garment also features two side seam pockets partially lined with mesh fabric (which allows for water to escape the pocket), and two inches below the waistband, an exterior back patch pocket with mesh fabric forming part of the pocket front and a flap with a tab on the back pocket, and a coin or key pocket on the interior right side of the waistband. The exterior rear pocket has a hook and loop fabric tape closure. The garment has two contrasting colored overlaid stripes approximately one inch above the hemmed leg openings. The garment was produced in China.

The garment will be imported with a matching drawstring pouch. The pouch measures approximately 7 inches by 9 inches and has a separate bottom to afford storage for the garment. It has a drawstring-like locking closure. It is tacked to the garment and will be sold at retail with the garment. It will not be offered for separate retail sale.


Whether the submitted sample is properly classified as men's swimwear, heading 6211, HTSUS, or men's shorts, heading 6203, HTSUS?


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 guidance 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 (HRL) 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. See HQ 952751, dated January 12, 1993; HQ 952209, dated October 2, 1992; HQ 951841, dated August 11, 1992; and HQ 950501, dated December 17, 1991. As such, Customs analysis is in fact, a two part test, that is, (a) examination of the physical attributes of the garment (three Hampco 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.

In the case of the subject merchandise, it is apparent that the submitted sample meets the first criteria: It has an elasticized waistband (there is no requirement that the entire waistband be elasticized). See, HQ 087264, dated June 13, 1990.

The drawstring on the submitted sample is threaded through all but the center five or six inches of the waistband. The ends of the drawstring are then threaded and drawn through 4 spaced grommets in a lacing fashion on the center of the waistband before the ends are tightened and tied. The drawstring on the garment before us serves to tighten the entire span of the waistband, while keeping the lace-up front of the
waistband relatively flat. The tightening provided by the drawstring is not minimal and serves the function of adjusting the size of the waistband. Accordingly, it is our view that the garment has a functional drawstring. The garment therefore meets the second criteria.

Customs has been consistent in ruling that even in those instances where the first two factors enumerated by the court in Hampco are present, the third factor (the garment is designed and constructed for swimming) must still be present. The garment is made of a woven outer shell fabric and possesses a mesh liner. The fabric used to construct this article is relatively lightweight, quick drying, and will not retain an inordinate amount of water. The garment's outseam length is not so long so that it inhibits swimming. The pockets have been constructed to facilitate drainage. We note that garment pocket openings which allow for drainage is a feature that is only useful when found on swim trunks. Accordingly, these features indicate that the garment has been designed principally for swimming and thus qualifies as men's swimwear in heading 6211, HTSUSA.

The shorts are packaged inside a matching bag and the shorts and bag are sold together at retail. In HRL 955787 of April 26, 1994, Customs classified a pair of men's flannel boxers sold inside a matching carrying bag. In that ruling, Customs classified the carrying bag and shorts as a composite good. We stated therein:

In HRL 087280, dated July 16, 1990 we addressed the tariff classification of a carrying bag imported with a poncho. The carrying bag was not specially shaped or fitted to hold its contents and was suitable for repetitive use. We concluded that the poncho and the bag constituted a composite article pursuant to General Rule of Interpretation 3(b), with the poncho imparting its essential character. Similarly, in HRL 086343, dated July 13, 1990, we classified a carrying bag sold with a windbreaker as a composite article with the essential character imparted by the garment. Recently, we classified a textile drawstring bag imported with blocks as a composite article and concluded that the blocks lent the essential character to the unit.

The instant carrying bag is sold as a unit with the shorts. It is not specially shaped or fitted to hold its contents and is suitable for repetitive use. Based upon the foregoing precedent, the carrying bag and shorts shall be classified as a composite article. The shorts lend the essential character to the unit. Accordingly, the carrying bag shall be classified with the shorts.

As this case is virtually identical to the situation in HRL 955787, i.e., shorts in a bag, the goods at issue here are classified as composite goods and the shorts impart the essential character.


The submitted pair of shorts, style S35MX402, is properly 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 column one rate of 28.2 percent ad valorem.

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 negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

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 Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

NY I85950, dated September 13, 2002, is hereby MODIFIED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.


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