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HQ 966228

March 3, 2003

CLA-2 RR:TC:TE 966228 SG


TARIFF NO.: 6211.11.1020

Sarah M. Nappi, Esq.
Miller & Chevalier
655 Fifteenth Street, N.W.
Washington, DC 20005-5701

RE: Revocation of New York Ruling (NY) I88095, dated October 31, 2002; Boys' woven swimwear, heading 6211, HTSUS; shorts, heading 6203, HTSUS

Dear Ms. Nappi:

This is in response to your letter dated January 23, 2003, on behalf of your client, Lands' End, Inc. (Lands' End), commenting on the Proposed Modification of Ruling Letter and Revocation of Treatment Relating to Tariff Classification of Men's Swimwear, notice of which appeared in the CUSTOMS BULLETIN, Vol.36, No. 52, December 26, 2002. The notice proposed to modify New York Ruling (NY) I85950, dated September 13, 2002, and to revoke any tariff treatment pertaining to the tariff classification of substantially identical merchandise. NY I85950 classified a men's short with attached drawstring pouch under subheading 6203.43.4030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), in the provision for men's shorts. The ruling was reviewed and found to be partially in error. You ask the Customs Service to reconsider NY I88095, issued to your client on October 31, 2002, on the substantially identical merchandise. We have reviewed the ruling issued to your client and found it to be in error. Therefore, this ruling revokes NY I88095.


The submitted garment, Style 83746B, is described as a pair of "Big Boys Camouflage Cargo Swim Trunks". The garment is made of 100 percent polyester woven fabric with a knit mesh liner. The garment has two cargo style pockets with flaps, and a hook and loop fabric tape closure. These pockets each have two grommet holes for drainage. One cargo style pocket straddles each side seam. The garment has a mock fly front and an elasticized waistband through which a drawstring is threaded. 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 has two contrasting colored overlaid stripes approximately one inch above the hemmed leg openings. The garment is produced in Bangladesh.


Whether the submitted sample is properly classified as boys' swimwear, heading 6211, HTSUS, or boys' 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. 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 boys' swimwear in heading 6211, HTSUSA.


The submitted pair of shorts, style S35MX402, is properly classified in subheading 6211.11.1020, HTSUS, the provision for " Track suits, ski-suits and swimwear; other garments: Swimwear: Men's or boys': Of man-made fibers: Boys'", 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 I88095, dated October 31, 2002, is hereby REVOKED. 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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