CLA-2 CO:R:C:T 955782
Ms. Monica K. Keim
350 Fifth, Ltd.
Empire State Building, Suite 4502
350 Fifth Avenue
New York, NY 10118
RE: Classification of boys' lower body garment; swimwear v.
shorts; Hampco
Dear Ms. Keim:
This is in response to your inquiry of December 30, 1993, on
behalf of your client, Sear's Roebuck & Co., requesting a tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) for a boy's lower body garment. A
sample was submitted for examination.
FACTS:
The submitted sample, Style No. SBS4041, is a boy's lower body
garment that is constructed of 100 percent knit cotton shell fabric
and 100 percent knit jersey cotton liner. The shell weighs 6.5
ounces per square yard and the liner weighs 4.5 ounces per square
yard. The garment contains a fully elasticized waistband with a
drawstring for tightening, two inserted side seam pockets, a rear
patch pocket, and is hemmed. Also, the sample garment, size
small, measures 19 1/4 inches from the top of the waistband to the
hemmed leg bottom. The garment size range is 8-20. A copy of a
catalog page depicting the instant garment was submitted. The
catalog described the subject garment as a "pull-on jersey active
bottom."
ISSUE:
Whether Style SBS4041 is classifiable as boys' swimwear under
Heading 6112, HTSUSA, or as boys' shorts under Heading 6103,
HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988),
the Court of International Trade was faced with the issue of
distinguishing shorts from swimwear. The court presented three
criteria for determining whether a garment is swimwear. The three
criteria are listed as follows:
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 is designed and constructed
for swimming.
The garment at issue, Style SBS4041, meets the first criterion
listed in Hampco, as it contains an elasticized waistband through
which a drawstring is threaded. It is questionable, however, as to
whether the subject garment meets the second criterion presented in
Hampco. The garment contains an inner lining made of cotton knit
jersey material and not nylon tricot. In Headquarters Ruling
Letter (HRL) 952322, dated December 17, 1992, Customs addressed
the courts second criterion and stated the following:
[I]n finishing its second criterion, the court stated in
regard to the lightweight material, "namely, nylon
tricot".***Customs will not interpret the court's wording so
narrowly as to say that for a garment to be considered
swimwear its inner lining must be of nylon tricot. However,
we do interpret the court's language to mean that a
lightweight inner lining of nylon tricot is generally
indicative of swimwear. When determining the classification
of a garment with an inner lining of a material other than
nylon tricot, Customs will consider the material from which
the lining is made and whether it is of a type generally used
in the manufacture of swimwear. This consideration goes to
the heart of the court's third criterion, i.e., that the
garment be designed and constructed for swimming.
The subject garment's inner lining is constructed of cotton
knit jersey material which is a highly absorbent fabric. As a
result of this absorbency, the garment would be impractical and
uncomfortable for wear during swimming. The liner would soak up
water and be slow to dry.
Finally, when examining the instant garment in light of the
court's third criterion, it is apparent that the garment is not
designed and constructed for swimming. The shell fabric is also
constructed of a highly absorbent knit jersey cotton fabric. As
stated above, the garment would retain moisture and adhere to the
wearer during swimming. Also, the garment features a rear patch
pocket which is uncommon in swimwear. A rear patch pocket is a
utilitarian characteristic common in outerwear. Finally, a catalog
page submitted by you refers to the subject garment as a "pull-on
jersey active bottom". This description accurately describes a
pair of outerwear shorts and not swimwear. The advertising
information does not mention that the garment is intended for use
as swimwear. Therefore, due to the garment's physical
characteristics as well as the submitted advertising information,
Style SBS4041 is classifiable as boys' shorts in Heading 6103,
HTSUSA.
HOLDING:
Style SBS4041 is classifiable in subheading 6103.42.1070,
HTSUSA, which provides for boys' knit cotton shorts. The rate of
duty is 17.1 percent ad valorem and the textile restraint 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 renegotiations 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 internal issuance of the U.S. Customs Service, which 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 applicable to textile
merchandise, you should contact your 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