CLA-2 CO:R:C:T 952209 jb
Mr. Bruce Goldstein
v.i.p. imports, inc.
350 Fifth Avenue
New York, NY 10118
RE: Men's cotton twill shorts; not swimwear; proper
classification, shorts, heading 6203, HTSUSA
Dear Mr. Goldstein:
This is in response to your letter dated June 19, 1992,
requesting the classification, under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of a pair of
men's cotton twill shorts. A sample was provided to this office
for examination.
FACTS:
The sample, Style number H 433, has a woven shell of cotton
and a knit support liner with a cutout to accommodate the
garment's fly front opening. The garment is approximately 17-
1/2 inches long from the top of the waistband to its hemmed
bottom. The sample has a fly front with a zipper closure, a one
button closure on the waistband and a functional drawstring.
The interior portion of the waistband features two hanger
loops and a coin pocket. The rear portion of the garment's
waistband is elasticized and features five surrounding belt
loops. The exterior portion of the garment features nine patch
pockets: two pockets with button closures; side pockets
immediately below the waistband; a pocket with a Velcro closure
on the lower left leg which has a smaller pocket constructed on
its lower exterior surface; a flapped pocket with a button
closure on the lower right leg and two smaller pockets
constructed on its lower exterior surface.
No information was provided on the marketing of the garment.
You state in your letter that the item will be imported from
China into the United States as swimwear.
ISSUE:
Whether the submitted sample is classifiable as men's
swimwear, under heading 6211, HTSUSA, or as men's shorts, under
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.
Heading 6203, HTSUSA, provides for, inter alia, articles of
apparel, not knitted or crocheted, men's or boys' breeches and
shorts (other than swimwear). Heading 6211, HTSUSA, provides
for, inter alia, articles of apparel, not knitted or crocheted,
swimwear. You contend that the submitted merchandise is
classifiable as swimwear.
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.
In classifying similar merchandise in the past (See HQ
950602, dated December 3, 1991), Customs determined that the
appearance of a pair of shorts was inconclusive for
classification purposes. As such, much consideration was given
to factors such as the embroidered sports logos, the attached
tags describing some of the shorts as "fitness" apparel, and the
placement of some of the garments with clearly sports oriented
outerwear in a 1992 sales manual. It was decided that the shorts
were designed and constructed as active wear shorts for uses
other than swimwear.
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; HQ 950188, dated
December 3, 1991; HQ 950652, dated February 12, 1992; and HQ
951841, dated August 11, 1992).
Several factors lead us to believe that the submitted shorts
are not designed and constructed as swimwear. Features such as
the medium weight twill fabric, the presence of the belt loops
and nine exterior pockets, weigh against classification as
swimwear. Such features are more suggestive of a multi-purpose
garment whose principal use will not be as swimwear. Though the
submitted sample meets the first two criteria of the Hampco court
(i.e., elasticized waistband with drawstring, and inner lining),
it does not meet the third criterion (i.e., designed and
constructed as swimwear).
As there is no substantial supporting evidence for the fact
that the submitted shorts are designed and constructed for
swimming, Customs is of the position that the shorts are
classifiable under heading 6203, HTSUSA.
HOLDING:
The submitted shorts, Style number H 433, are classified
under subheading 6203.42.4050, HTSUSA, which provides for men's
woven cotton shorts. The applicable rate of duty is 17 percent
ad valorem. The textile category is 347.
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.
Sincerely,
John Durant, Director