CLA-2 CO:R:C:T 956299 ch
Howard M. Paull, Esq.
630A Third Street
Brooklyn, New York 11215
RE: Classification of men's swimwear; shorts; Hampco.
Dear Mr. Paull:
This is in response to your letter of March 22, 1994,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), for what is
described as a men's swimsuit. A sample was provided to our
office for examination and will be returned to you under separate
cover.
FACTS:
The submitted sample, style 51045, has a woven shell
comprised of 60 percent cotton and 40 percent polyester, as well
as a 100 percent nylon mesh liner. The sample is a size medium
and measures approximately 18 inches from the top of the
waistband to its hemmed bottom. This item possesses side seam
pockets with mesh near the bottom seam to facilitate drainage.
In addition, it has a rear patch pocket and a flap simulating a
flapped pocket on the lower left leg. The garment features a
fully elasticized waistband encircled with five tunnel belt
loops, a woven nylon belt with a plastic slide closure and a
functional drawstring. It does not possess a fly.
ISSUE:
Whether the subject merchandise is classified under heading
6211, HTSUSA, which provides for men's swimwear, or heading 6203,
HTSUSA, which provides for men's shorts (other than swimwear)?
LAW AND ANALYSIS:
The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories, CIE 13/88, November 23,
1988, at page 21, states that:
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.
Thus, athletic shorts and swim trunks are classified separately,
although they may closely resemble one another. The Guidelines
indicate that swim trunks usually possess a drawstring and a
lightweight liner. In addition, a pair of swim trunks must be
recognizable as such.
In Hampco Apparel, Inc. v. United States, 12 C.I.T. 92
(1988), the Court of International Trade set forth features
typically found in swimwear:
(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 that decision, the Court stated:
If all of the above are present, the garment is
swimwear. If the garment does not have an inner lining
and has a fly front, it would be considered shorts.
In this case, the garment has both a lightweight inner lining and
an elasticized waistband through which a drawstring is threaded.
Hence, the first two criteria have been met. Consequently, style
51045 shall be classified as swimwear if it is designed and
constructed for swimming.
In this regard, it has been our practice to 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 the garment is
chiefly used. See HRL 952751, dated January 12, 1993; HRL
952209, dated October 2, 1992; HRL 951841, dated August 11, 1992;
HRL 950501, dated December 17, 1991.
In this instance, we conclude that style 51045 appears to be
designed principally for swimming. 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. The presence of pockets
and belt loops does not preclude classification as a swimsuit.
See HRL 087357, dated June 25, 1990; HRL 087264, dated June 13,
1990. The side seam pockets have been designed so as to
facilitate drainage. Although the presence of a belt is not
normally associated with swimwear, in this instance it is
composed of lightweight, non-absorbent materials. Hence, it will
not be cumbersome when bathing. Finally, the absence of a fly
front renders it less likely that the garment will be worn as
shorts. Based on the foregoing discussion, style 51045 is
classifiable as men's swimwear, pursuant to heading 6211, HTSUSA.
However, this decision relates only to the submitted sample.
We note that in your correspondence you state that the garment
"will also feature a zipper fly front." This feature would
render it more likely that the garment will be worn principally
as a pair of men's shorts. Consequently, we reserve judgment on
the classification of this item imported with a zipper fly front.
HOLDING:
The subject merchandise is classifiable under subheading
6211.11.2010, HTSUSA, which provides for track suits, ski-suits
and swimwear; other garments: swimwear: men's or boys': other,
of cotton, men's. The applicable rate of duty is 8 percent ad
valorem. The textile 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 the subject of 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