CLA 2 RR:CR:TE 962002 SG
TARIFF NO: 6203.43.4040
Port Director
U. S. Customs Service
1624 East 7th Avenue, suite 101
Tampa, FL 33605
RE: Application for Further Review of Protest No 1801-98-100024; Classification of boy’s garment; shorts vs. swimwear
Dear Sir:
This is in response to the application for further review of Protest No. 1801-98-100024 timely filed on May 26, 1998, by Larry Ordet, Esq. of Sandler, Travis & Rosenberg, P.C., on behalf of his client VF Knitwear, Inc. (Nutmeg Mills Inc.), concerning your demand for redelivery of certain garments and the proper classification of those garments which were imported from China. The garments were entered on March 9, 1998, in subheading 6211.11.1020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). On April 8, 1998, Customs issued a notice to redeliver the merchandise because it should have been classified as boy’s shorts under subheading 6203.43.4030, HTSUSA. We note that the redelivery notice should have read subheading 6203.43.4040, HTSUSA. The importer has protested the classification and claims the proper classification of these garments is as swimwear under subheading 6211.11.1020, HTSUSA.
FACTS:
The sample is a pair of boy’s shorts with an outer shell of 100% nylon woven fabric. It has a mesh liner of knit polyester fabric. The garment measures 15 ½ inches from the waist to the hem of the leg. It has two side seam pockets with partial mesh and partial woven linings. The waistband of the garment is elasticized. However the garment contains no drawstring. The shorts have the word “KNICKS” printed on the rear of the garment in letters 4 inches high. There is a patch on the lower left leg with the words “NEW YORK KNICKS” and a basketball embroidered on it. There is a tag in the inner rear of the waistband showing a player dribbling a basketball, and the letters “NBA”. The garment has another label in the inner rear of the waistband identifying the fiber content and the country of origin. The label also says “LEE SPORT”. In addition, the garment has a hang tag showing a player dribbling a basketball and the letters “NBA”. The reverse of the tag contains the licensing agreement of the “NBA” and individual “NBA” member team identification.
ISSUE:
Whether the submitted sample is classifiable as boy's swimwear of heading 6211, HTSUSA, or boy's shorts of heading 6203, HTSUSA?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI) govern classification of merchandise under the HTSUSA. 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 GRI will be applied, in the order of their appearance.
In Hampco Apparel, Inc. v. United States, 12 Ct. Int’l Trade 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.
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.
In the instant case, it is apparent that the submitted sample does not meet the first criteria of Hampco, there is no drawstring threaded through an elasticized waistband. Without a drawstring, the garment does not satisfy the Hampco test and the “KNICKS” logo and embroidered patch as well as the pockets, tends to be indicative of the garment’s status as shorts. In the Textile Category Guidelines, C.I.E. 13/88, it was recognized that “[G]arments which cannot be recognized as swim trunks will be considered shorts.”
It is asserted by protestant that the submitted sample should be classified as swimwear because it is similar to other garments that Customs has classified as “swimwear” (HQ 959071, dated October 4, 1996, HQ 958793, dated August 4, 1997, HQ 953396, dated April 15, 1993, and HQ 958249, dated October 23, 1995). That is not correct. In all of these rulings, the garments had elasticized waistbands through which a drawstring was threaded. They therefore, did meet the first Hampco criteria. The sample submitted by protestant does not.
Insofar as the assertion that Customs has classified garments as swimwear when there was no drawstring, Customs has ruled in HQ 958169, dated September 25, 1995, and HQ 956299, dated may 13, 1994, that garments with elasticized waistbands and a belt and belt loops, which provided the same tightening function as the drawstring, and met all the other Hampco criteria, were in fact swimwear. The sample at issue here does not. We note additionally that in HQ 957745, dated June 8, 1995, we ruled that a garment a snap closure and plastic tab with Velcro provided “minimal tightening” and did not serve the function of a drawstring. The garment was therefore not classified as swimwear.
It is claimed that the sample garment was designed and constructed for swimming. In support thereof, protestant states that the lining is lightweight and will not absorb or retain an inordinate amount of water to render the garment inefficient for swimming, and that the garment will dry quickly. After reviewing the sample before us, it is our belief that although the garment may dry quickly, it is designed and constructed as active wear shorts for primary use other than as swimwear. This is evidenced by the patch with the embroidered sports logos (KNICKS), the embroidered basketball; the use of the word “KNICKS” printed in large letters across the back of the item; attached tags showing a player throwing a basketball, the hanging tags showing the same; the sales literature received by which the importer identifies the sample garment as shorts; and other submitted sales literature showing that the protestant’s client does not sell swimwear but in fact, sells only sweatshirts, pullovers, shirts, sweaters, hats, etc. with NBA, NFL and other licensed sports team logos. We note that although the sample may have a fugitive use as swimwear, it was not designed or constructed for swimming.
Inasmuch as the shorts do not meet the three criterion of Hampco, Customs is of the view that the sample is properly classifiable under heading 6203, HTSUSA.
HOLDING:
The submitted garment is properly classified under subheading 6203.43.4040, HTSUSA, which provides for boys’ woven shorts of synthetic fiber. The general column one rate of duty as of January 1, 2000, is 28.6 percent ad valorem. The textile category is 647.
The protest should be DENIED.
In accordance with Section 3A (11) (b) of Customs Directive 0993550 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 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 this decision available to Customs personnel, the public on the Customs Home page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division