CLA-2 CO:R:C:T 957409 CMR
Mr. Kevin Maher
C-Air Customhouse Brokers, Inc.
153-66 Rockaway Boulevard
Jamaica, New York 11434
RE: Classification of a pair of men's woven shorts; shorts v.
swimwear; 6203, HTSUSA, v. 6211, HTSUSA; Hampco Apparel
Dear Mr. Maher:
This ruling is in response to your request of September 2,
1994, on behalf of your client, Blitzz International, regarding
the classification of a certain pair of men's shorts. You
indicated in your letter, the garment, style 96090, will be
manufactured in Hong Kong and entered at JFK Airport. Your
letter and submitted sample garment were forwarded to this office
for a decision.
FACTS:
The submitted sample, style 96090, is a pair of men's 100
percent woven nylon taslon shorts. The shorts do not have a fly.
The garment features a full mesh liner of 100 percent polyester
fabric, a fully elasticized waistband with a functional
drawstring, five 1-« inch-wide (tunnel) belt loops, and a woven
nylon belt with a plastic slide closure. The garment has
numerous pockets--two front patch pockets that are expandable,
have partial hook-and-loop closures, and mesh bottoms; two rear
inserted pockets of mesh fabric with zipper closures; a patch
pocket with expandable mesh sides constructed on the exterior
bottom surface of the left front patch pocket; and an inner coin
pocket with a hook-and-loop closure is attached to the inner
waistband. The sample garment measures 16-« inches from the top
of the waistband to the hemmed bottom (no size is indicated). It
has a plastic D-ring hanging from the right front belt loop.
ISSUE:
Is the submitted garment classifiable as men's swimwear or
as men's shorts? -2-
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988),
the Court of International Trade examined the problem of
distinguishing men's shorts from men's swimwear. In its opinion,
the court set out three criteria for determining whether a
garment is properly considered to be swimwear. The three
criteria are:
(1) whether the garment has a (sic) 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. 12 CIT 92, 95.
Beyond possessing the listed criteria, the court determined that
the garment at issue therein was designed, manufactured, marketed
and intended to be used as swimwear. The court therefore
concluded that the garment before it was properly classified as
swimwear.
Although the Hampco decision involved classification of
swimwear under the previous tariff schedule, i.e., the Tariff
Schedules of the United States, it is relevant to decisions under
the HTSUSA as the tariff language at issue is the same and the
current tariff does not offer any new or different guidance
regarding the distinction between swimwear and shorts.
The garment at issue, style 96090, has an elasticized
waistband with a functional drawstring and has an inner lining of
lightweight material. Although the lining is not of nylon
tricot, the construction of the lining is such that Customs
believes it is of a type used in the construction of swimwear.
See, Headquarters Ruling Letter 952322 of December 17, 1992.
Thus, style 96090 meets the first and second criteria established
by the court in Hampco. The last criteria, whether the garment
was designed and constructed for swimming, is not so easily
determined.
-3-
The garment at issue has numerous pockets, a feature not
generally associated with swimwear. However, Customs issued a
ruling on a similarly designed garment, HRL 956299, on May 13,
1994, in which it was determined the garment was properly
classified as swimwear. The garment at issue in HRL 956299 was
described therein as follows:
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. * * * 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.
The description of the garment in HRL 956299 is extremely
similar to the description of the garment at issue here. The
garments vary in the fiber composition of the fabrics with which
they are made, but both garments are made of lightweight woven
outershell fabrics and possess mesh liners. Style 96090 varies
from style 51045 in that style 96090 has two additional pockets
and a plastic D-ring at the waistband. In our view, the
variation in construction between styles 51045 and 96090 is not
significant enough to warrant different classifications.
In HRL 956299, Customs stated:
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.
[This is also the case with style 96090.] 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.
For the same reasons set out in HRL 956299, Customs believes
that style 96090 is properly classified as men's swimwear of
heading 6211, HTSUSA. -4-
HOLDING:
The garment at issue, style 96090, is classified as men's
woven swimwear of man-made fiber in subheading 6211.11.1010,
HTSUSA, textile category 659, dutiable at 29.4 percent ad
valorem.
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 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 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 your 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