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HQ 081898


July 20, 1988

CLA-2 CO:R:C:G: 081898 DSN

CATEGORY: CLASSIFICATION

TARIFF NO.: 381.6585; 384.5299; 6211.11.2010; 6211.42.0050

Mr. Rumi Kobara
Import Manager
340 Brannan Street, Suite 500
San Francisco, CA 94107

RE: Tariff classification of shorts and bandeaus

Dear Mr. Kobara:

Your inquiry of November 11, 1987, on behalf of Wilkes Sport, concerning the tariff classification of men's shorts and a women's bandeau under the Tariff Schedules of the United States Annotated (TSUSA), was referred to this office for a direct reply. Samples produced in Hong Kong were submitted for examination.

FACTS:

The sample men's shorts, style no. FM352559, consist of a 100 percent cotton shell and a fully elasticized waistband through which a drawstring is threaded. The garment contains a lightweight nylon tricot liner, and side seam pockets and one rear pocket that is partially secured with a button closure.

The sample women's bandeau, style no. FW317059, is 100 percent cotton with a nylon lining, and features a shirred elasticized back. The front of the garment contains an inch-wide elastic band at the lower edge. There is elastic around the edges of the cups, with a stay in each side seam.

ISSUE:

Whether the men's garment should be classified as shorts or swimtrunks and how the women's bandeau should be classified.

LAW AND ANALYSIS:

In Hampco Apparel, Inc. v. U.S., Slip Op. 88-12 (Ct. Int'l Trade, decided January 28,1988), the Court addressed the distinction between men's garments considered to be shorts and those which are swimwear. The Court's criteria for determining
whether a garment is shorts or swimwear are 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 was designed and con- structed for swimming.

Id. at 7. If all of the above criteria are present, the garment is treated as swimwear. Id. With respect to the instant merchandise, the garments contain an elasticized waistband with a drawstring and an inner lining of nylon tricot. Further, your letter states that this style was designed prior to production to include all the requirements for swimtrunks. We agree that they are intended to be used for swimming. Pursuant to Hampco, they are classified as swimwear.

With respect to the bandeau, we have consistently precluded these types of articles from classification as blouses because they do not extend from the neck or shoulders to the vicinity of the waistline. Textile Category Guidelines for Fabric and Garments Reported Under Various Categories, CIE 6/87, p. 32. Garments which cover the chest area only but reach neither to the shoulders nor to the waist are included as tops. Id. at 26. Bandeaus fit within this description and are similar in design to tube-type garments which are classified as a tops. This type of garment in other fabrics has been classified as tops; however, there is no statistical breakout for cotton, not knit, tops under the TSUSA. Consquently, under the TSUSA we must classify this garment in a provision for other women's wearing apparel. HRL 081411 of March 10, 1988.

HOLDING:

In view of the foregoing, the swimtrunks are classified under the provision for men's or boys' wearing apparel, not ornamented, of cotton, not knit, item 381.6585, TSUSA, textile category 359, dutiable at the rate of 8 percent ad valorem.

The bandeau is classified under the provision for other women's wearing apparel, of cotton, not ornamented, not knit, other, other, other, item 384.5299, TSUSA, textile category 359, dutiable at the rate of 8 percent ad valorem.

The proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is scheduled to replace the TSUSA. The HTSUSA provision applicable to the above described merchandise is subheading 6211.11.2010, which provides for men's swimwear, of cotton, textile category 359, dutiable at the rate of 8 percent ad valorem.

The HTSUSA has a specific breakout for women's cotton tops, not knitted or crocheted, subheading 6211.42.0050, HTSUSA, textile category 341, dutiable at the rate of 8.6 percent ad valorem. This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the proposed HTSUSA. If there are changes before enactment, this advice may not continue to be applicable.

Sincerely,

John Durant, Director

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