HQ 0950207 - Classification of men's garments; woven cotton denim shorts; knit cotton swimwear; Hampco Apparel, Inc. v. United States, 12 C.I.T. 92 (1988); Textile Category Guidelines , C.I.E. June, 1987; 6203 and 6112, HTSUSA - United States International Trade Commision Rulings

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HQ 950207

December 3, 1991

CLA-2 CO:R:C:T 950207 SK

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6203; 6112

Mr. Jack Dweck
Chase International Corp.
350 Fifth Avenue, ste. 1012
New York, N.Y. 10118

RE: Classification of men's garments; woven cotton denim shorts; knit cotton swimwear; Hampco Apparel, Inc. v. United States, 12 C.I.T. 92 (1988); Textile Category Guidelines , C.I.E. June, 1987; 6203 and 6112, HTSUSA

Dear Mr. Dweck:

This is in response to your letter of July 20, 1991, requesting classification of three articles of men's apparel. A sample of each article was submitted to Customs for examination.

FACTS:

Three articles were submitted for classification.

Style No. 92-2905KN18 has a jersey knit shell of 100% cotton and a knit cotton liner. It has an elasticized waist, a drawstring, inserted side seam pockets and a rear patch pocket. It has a vertical overlay on the left leg and a horizontal overlay on the right leg. The outseam measures 17 inches from the top of the waistband to the bottom of the leg.

Style Nos. 92-4830 and 92-4845 have woven shells of 100% cotton denim and knit nylon partial liners. Style 92-4830 is made of 8 ounce denim and style 92-4845 is made of 10 ounce denim. Both samples have elasticized waistbands, drawstrings and fly front openings with velcro-like closures. The fly front openings do not break the waistbands. Style 92-4845 has inserted side pockets and a rear inserted pocket. It has an outseam length of 23 inches measured from the top of the waistband to the leg bottom. Style 92-4830 has inserted side seam pockets and a rear patch pocket with a velcro-like closure. It has an outseam length of 24 inches measured from the top of the waistband to the leg bottom.

ISSUE:

What is the proper classification of the submitted articles under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The issue in the instant case is whether the three submitted samples are classifiable under heading 6203, HTSUSA, which provides for, inter alia, men's shorts or under heading 6112, HTSUSA, which provides for men's swimwear.

In Hampco Apparel, Inc. v. United States, 12 C.I.T. 92 (1988), the Court set forth guidelines with regard to the classification of men's swimwear. The following criteria were deemed indicative of men's swimwear:

1) the garment has an elasticized waistband through which a drawstring is threaded;

2) there is an inner lining of lightweight material, namely nylon tricot; and

3) the garment must be designed and constructed for swimming [emphasis added].

The Court also noted in its decision that if the garment does not have an inner lining and has a fly front, it would be considered shorts.

In the instant case it is apparent that all three submitted samples meet the first two criteria: all three styles have elasticized waistbands, drawstrings and inner linings. Style 92- 2905KN18 also meets the third requirement inasmuch as the fabric used in this garment's construction, and its styling, are consistent with a design and construction for use as swimwear. Accordingly, style 92-2905KN18 is classifiable as men's swimwear under heading 6112, HTSUSA.

It is Customs opinion, however, that styles 92-4830 and 92- 4845 do not meet the third criterion and that these garments are not designed and constructed for swimming, notwithstanding the presence of elasticized waists, drawstrings and linings. The fabric used in the construction of these garments is 8 and 10 ounce denim respectively. This is a considerable weight for swimwear -- especially when wet. The use of denim will not by itself preclude classification of garments as swimwear; however, coupled with the styling of these garments, it is apparent that the design and construction of these articles are not suitable for use as swimwear. The outseam lengths of the two garments are 23 and 24 inches. Again, this in itself will not preclude classification as swimwear. However, constructing knee-length shorts from 8 or 10 ounce denim fabric would clearly make swimming difficult and cumbersome.

Styles 92-4830 and 92-4845 have linings, but they are only partial linings and do not cover the area in front of the fly. The presence of a fly in itself is indicative of these garments' status as shorts. In The Textile Category Guidelines, C.I.E. June, 1987, it was recognized that men's swimwear usually have full lightweight support liners and "while a fly front will not preclude a garment from being swimwear, normally a garment with a fly front and two or more pockets is shorts and not swimwear". Styles 92-4830 and 92-4845 both have flys, three pockets, and partial linings which split in front of the fly and would require the wearing of underwear (obviously not a practice associated with swimwear). These factors indicate that these articles were designed and constructed as shorts and not swimwear.

The weight of the fabric chosen for use in style 92-4830 and 92-4845, combined with the length of the outseam, the presence of a fly, the use of only a partial lining and the presence of three pockets on each style, indicate that these two styles are shorts and not swimwear.

HOLDING:

The submitted samples are classifiable as follows:

Style 92-2905KN18 is classifiable under subheading 6112.39.0010, HTSUSA, which provides for track suits, ski-suits and swimwear; other garments: swimwear: other ... of cotton: men's. The rate of duty is 14% ad valorem and the textile category is 359.

Styles 92-4830 and 92-4845 are classifiable under subheading 6203.42.4050, HTSUSA, which provides for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): of cotton: other: shorts: men's. The applicable rate of duty is 17.7% ad valorem and the textile category is 347.

The designated textile and apparel categories 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 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

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