CLA-2 RR:CR:TE 962636 jb
William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Request for reconsideration; men's woven shorts; not swimwear
Dear Mr. Maloney:
This is in response to your letter dated March 5, 1999, on behalf of your client, Deckers Outdoor Corporation, requesting reconsideration of New York Ruling Letter (NY) D87482, dated February 25, 1999, which classified certain men’s lower body garments as shorts in heading 6203, Harmonized Tariff Schedule of the United States (HTSUS). Samples and marketing material (pages taken from your client’s Spring catalogue) were provided to this office for examination.
FACTS:
The submitted merchandise, referred to as men’s “swimwear”, consists of the following garments:
Style number 32719, Monsoon Trunk, is composed of a woven shell of 60 percent cotton and 40 percent nylon fabric, and a knit liner of 100 percent polyester fabric. The garment features a self-fabric fully elasticized waistband which has a webbed belt with a plastic clasp threaded through it, side seam pockets, a rear flapped pocket with a hidden zipper closure and a hemmed bottom. The garment has been bar tacked at high stress areas.
Style number 300, Chorts, is composed of a woven shell of 100 percent nylon fabric, and a woven liner of 100 percent polyester fabric. The garment features a self-fabric covered fully elasticized waistband which has a webbed belt with a plastic clasp threaded through it, side seam pockets with snap closure, a rear mesh pocket with zipper closure and a hemmed bottom. The garment also features a double layer of fabric at the seat; the inner layer extends approximately three inches below the exterior fabric at the legs.
In NY D87482 the subject garments were classified in heading 6203, HTSUS, as men’s shorts. You disagree with this classification and claim that the subject garments are properly classified as swimwear and refer to the characteristic features cited by the U.S. Court of International Trade in Hampco Apparel, Inc. v. United States, 12 C.I.T 92 (1988) as support for your claim.
ISSUE:
Whether the submitted samples are classifiable under men's swimwear, heading 6211, HTSUSA, or men's shorts, heading 6203, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the 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 GRI will be applied, in the order of their appearance.
In Hampco Apparel, Inc. v. United States, 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, and
(3) the garment is designed and constructed for swimming
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. 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 clear that the subject garments do not satisfy all of the criteria required by Hampco. Although you describe the subject garments as having a “drawstring”, in fact, no drawstring is present in either of the garments. What you claim to be a “drawstring” is actually a webbed belt with plastic tab which has been inserted into the elasticized waistband of the garments. The tightening provided by the plastic tab and webbed belt is minimal and would not serve the function of a drawstring. We note that even in the advertisement submitted by you on behalf of your client, what you refer to as a “drawstring” is actually described as a “webbing belt.”
Customs has been consistent in ruling that even in those instances where the first two factors enumerated by the court in Hampco are present, but the third factor is lacking, the article will be considered shorts (See also, HQ 086436, dated May 3, 1990; HQ 086979, dated May 15, 1990; HQ 087476, dated September 7, 1990; HQ 950207, dated December 3, 1991, and HQ 950652, dated February 12, 1992). Upon examination of the subject garments, it would be a fair statement to say that these garments will be worn for purposes other than swimming. Although we do not hold issue with the claim that these garments can be used as swimwear, as reflected in the pages of your client’s catalogue, these garments clearly are “transition” garments for use in a variety of activities. As cited in your client’s catalogue for style number 32719, “...all purpose trunk is durable yet comfortable...webbing belt cinches down over elasticized waistband to ensure your shorts stay on during a brief swim....” For style number 300, that same catalogue reads, “ Double layer seat and webbing belt over an elasticized waist lets you rock slide and cliff dive with confidence.” Obviously, in the case of style number 32719, a “brief” swim would indicate that the activity of “swimming” will be secondary to some other primary purpose. This is clearer still in the case of style number 300, which indicates that the garment will allow you to “rock slide and cliff dive with confidence.”
Although we do not dispute that these garments might be worn for swimming, it is our belief that such a use would be a fugitive one and would not be the use for which the garments are primarily purchased. In regard to use, the Court in Hampco, also stated:
The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function. Trans Atlantic Co., v. United States, 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973). * * * The fact that swimwear may be used for other incidental purposes unrelated to swimming, e.g., boating, basketball, volleyball and bicycling, does not change its character as swimwear. If the garment was designed and constructed as swimwear, it shall be so classified.
The Court's remarks regarding swimwear susceptible to fugitive uses may also be said of sports shorts designed primarily for uses other than swimming, but which could be used for swimming. Such a use would be a fugitive use, as is the case here. (See also HQ 952322, dated December 17, 1992)
It is our belief that your claim that the submitted garments are designed and constructed for swimming is not adequately supported by your submission. Accordingly, the subject garments were correctly classified in NY D87482, as men’s shorts in heading 6203, HTSUS.
HOLDING:
Style number 32719 is classified under subheading 6203.42.4050, HTSUSA, which provides for, men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of cotton: other: other: shorts: men’s. The applicable rate of duty is 17.2 percent ad valorem and the quota category is 347.
Style number 300 is classified under subheading 6203.43.4030, HTSUSA, which provides for,
men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of synthetic fibers: other: other: other: other: other: shorts: men’s. The applicable rate of duty is 28.8 percent ad valorem and the quota category is 647.
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 your client 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division