CLA-2 CO:R:C:T 950188 JS
Jack Dweck
Chase International Corp.
350 Fifth Avenue
Suite 1012
New York, NY 10118
RE: Men's swim trunks; shorts; classifiable heading 6203, HTSUSA
Dear Mr. Dweck:
This is in reference to your letter, not dated, but received
August 5, 1991, which requested classification of a men's lower
garment described as swim trunks, under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA).
FACTS:
Two virtually identical samples, nos. 92-6062FC and 92-6060,
were provided for our inspection. The garment is a pair of men's
grey shorts, made of 100 percent cotton twill fabric. A 100
percent nylon partial lining which looks much like those found
in men's swimwear is sewn onto the inside; however, this lining
is distinguishable from that type since it does not cover the
fly area. The partially elasticized waist has an inner
drawstring, and four belt loops and five buttons, one above the
zippered fly and two on each side. The side buttons can be
fastened with the available tabs to adjust the fit. The garment
has a pleated front, two side slash pockets, and a back flap
pocket with a snap closure. These shorts measure 23 inches from
waist to cuff, and have a 9 1/2 inch inseam.
In your letter you refer to these garments as swim trunks
and request classification under heading 6211, HTSUSA.
ISSUE:
Whether this garment is considered men's shorts under
heading 6203, or swimwear under heading 6211 of the HTSUSA.
2
LAW AND ANALYSIS:
Heading 6203 provides for, inter alia, men's shorts. The
Explanatory Notes (EN), the official interpretation of the tariff
at the international level, direct that the provisions of EN
61.03 apply, mutatis mutandis, to the articles of this heading.
EN 61.03 states that for the purposes of this heading, "shorts"
means "trousers" which do not cover the knee, and swimwear is not
included.
The present garment has all the characteristics of men's
shorts, with the exception of the partial lining, which in this
case, has been designed to line a garment with a zipper fly front
and not swim trunks. The shorts are made of a woven cotton
twill, a distinctive fabric commonly used for trousers and
shorts, and they have many, if not all, of the typical
characteristics of men's shorts, such as the partially
elasticized waist, tab and button cinches, a zipper fly front,
side slant pockets, and frontal pleats. These characteristics
have also been enumerated in the Textile Category Guidelines,
CIE 13/88 (November 23, 1988).
Heading 6211, which provides for swimwear, is inapplicable
for the following reasons. The Court of International Trade in
Hampco Apparel, Inc. v. United States 12 C.I.T. 92 (1988) set out
three criterion for the classification of men's swimwear:
1) whether the garment has an elasticized waistband through
which a drawstring is threaded;
2) whether the garment has an inner lining of lightweight
material, namely, nylon tricot; and
3) whether the garment was designed and constructed for
swimming (emphasis added)
Moreover, the Court stated that if the garment does not have an
inner lining and has a fly front, it would be considered shorts.
Therefore, although the samples at issue fit the first two
criteria, Customs believes that the present garments are not
designed and constructed for swimming. The weight and length of
the garment would inhibit movement in the water and the fabric
would retain water and be slow-drying. In sum, the appearance of
the garment as a whole does not evidence swimwear.
The Guidelines, too, state that "swim trunks will usually
have an elasticized waist with a drawstring and a full
lightweight support liner. They also state that "[g]arments
which cannot be recognized as swim trunks will be considered
shorts." Therefore, the samples before us, which are undoubtedly
recognizable as shorts, may not be considered swimwear in this
instance.
3
HOLDING:
The garments at issue are men's shorts for the purposes of
classification, and as such are provided for under heading
6203.42.4050, HTSUSA, 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,
textile category 347, dutiable at the rate of 17.7 percent.
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 you check, close 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 for
inspection at your 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 importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division