CLA-2 R:C:T 958169 jb

Howard M. Paul, Esq.
630A Third Street
Brooklyn, N.Y. 11215

RE: Classification of men's woven cotton shorts; swimwear, heading 6211, HTSUSA; Hampco Apparel Inc. v. United States

Dear Mr. Paul:

This is in response to your letter dated June 26, 1995, on behalf of your client, New Princely Industries, Inc., requesting classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a pair of men's woven cotton shorts. A sample was provided to this office for examination.

FACTS:

The sample, Style number 51040, consists of a pair of men's size Medium shorts composed of a woven shell comprised of 60 percent cotton and 40 percent polyester, and a 100 percent nylon tricot mesh liner. The garment has a fully elasticized waistband with a snap closure, five tunnel belt loops, a woven nylon belt with a plastic slide closure, a functional drawstring, and a zipper fly closure. The shorts measure 18 inches from the top of the waistband to its hemmed bottom. The garment has side seam inserted pockets and a rear inserted pocket with zipper closure; on the lower left leg there is a flap simulating a flapped pocket, with velcro closure.

ISSUE:

Whether the submitted sample is 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, Slip Op. 88-12 (January 28, 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, and

(3) the garment is designed and constructed for swimming

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, November 23, 1988, also provide guidelines 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. (Emphasis added).

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.

Customs has classified similar merchandise in the past. In HQ 957409, dated January 27, 1995, and HQ 956299, dated May 13, 1994, garments designed similarly to the submitted garment, i.e., with pockets, belt loops and a woven nylon belt, were classified as swimwear. The descriptions of the garments in HQ 957409 and HQ 956299 are extremely similar to the description of the garment at issue herein. Though the garments vary in the fiber composition of the fabrics with which they are made, all the garments are made of lightweight woven outershell fabrics and possess mesh liners. The submitted garment varies slightly from the garments in the above stated rulings in that style number 51040 has a fly front opening. It is our opinion that this variation in construction, on this particular garment, is not significant enough to warrant different classification. Although the garment does feature a fly front opening which might be uncomfortable against the wearer's bare skin, the back of the zipper has a strip of fabric that overlaps the zipper, serving as a shield between the wearer and the zipper. Additionally, the fabric used to construct this article is relatively lightweight and will not retain an inordinate amount of water, the garment's outseam length is not so long so that it inhibits swimming, and the belt is composed of lightweight, non-absorbent materials. Accordingly, these features indicate that the garment has been designed principally for swimming and thus qualifies as men's swimwear in heading 6211, HTSUSA.

HOLDING:

The subject men's shorts, referenced style number 51040, are classified under subheading 6211.11.8010, HTSUSA, which provides for track suits, ski-suits and swimwear; other garments: swimwear: men's or boys': other: other; of cotton: men's. The applicable rate of duty is 8 percent ad valorem and the quota category is 359.

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 renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status 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 applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division