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HQ 952209


October 2, 1992

CLA-2 CO:R:C:T 952209 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.42.4050

Mr. Bruce Goldstein v.i.p. imports, inc.
350 Fifth Avenue
New York, NY 10118

RE: Men's cotton twill shorts; not swimwear; proper classification, shorts, heading 6203, HTSUSA

Dear Mr. Goldstein:

This is in response to your letter dated June 19, 1992, requesting the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a pair of men's cotton twill shorts. A sample was provided to this office for examination.

FACTS:

The sample, Style number H 433, has a woven shell of cotton and a knit support liner with a cutout to accommodate the garment's fly front opening. The garment is approximately 17- 1/2 inches long from the top of the waistband to its hemmed bottom. The sample has a fly front with a zipper closure, a one button closure on the waistband and a functional drawstring.

The interior portion of the waistband features two hanger loops and a coin pocket. The rear portion of the garment's waistband is elasticized and features five surrounding belt loops. The exterior portion of the garment features nine patch pockets: two pockets with button closures; side pockets immediately below the waistband; a pocket with a Velcro closure on the lower left leg which has a smaller pocket constructed on its lower exterior surface; a flapped pocket with a button closure on the lower right leg and two smaller pockets constructed on its lower exterior surface.

No information was provided on the marketing of the garment. You state in your letter that the item will be imported from China into the United States as swimwear.

ISSUE:

Whether the submitted sample is classifiable as men's swimwear, under heading 6211, HTSUSA, or as men's shorts, under heading 6203, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 6203, HTSUSA, provides for, inter alia, articles of apparel, not knitted or crocheted, men's or boys' breeches and shorts (other than swimwear). Heading 6211, HTSUSA, provides for, inter alia, articles of apparel, not knitted or crocheted, swimwear. You contend that the submitted merchandise is classifiable as swimwear.

In Hampco Apparel, Inc. v. United States, Slip Op. 88-12 (January 28, 1988), the Court of International Trade stated that three factors must be present if a garment is to be considered swimwear for tariff purposes:

(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

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, November 23, 1988, also provide guidelines in classifying garments as either men's shorts or swimwear. The guidelines state:

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. (Emphasis added).

In Headquarters Ruling Letter (HRL) 081477, dated March 21, 1988, we stated that in order to determine whether a garment is designed and constructed for swimming, we will 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 a garment is chiefly used.

In classifying similar merchandise in the past (See HQ 950602, dated December 3, 1991), Customs determined that the appearance of a pair of shorts was inconclusive for classification purposes. As such, much consideration was given to factors such as the embroidered sports logos, the attached tags describing some of the shorts as "fitness" apparel, and the placement of some of the garments with clearly sports oriented outerwear in a 1992 sales manual. It was decided that the shorts were designed and constructed as active wear shorts for uses other than swimwear.

Customs has been consistent in ruling that even in those instances where the first two factors enumerated by the court in Hampco are present, but the third factor is lacking, the article will be considered shorts (See also, HQ 086436, dated May 3, 1990; HQ 086979, dated May 15, 1990; HQ 087476, dated September 7, 1990; HQ 950207, dated December 3, 1991; HQ 950188, dated December 3, 1991; HQ 950652, dated February 12, 1992; and HQ 951841, dated August 11, 1992).

Several factors lead us to believe that the submitted shorts are not designed and constructed as swimwear. Features such as the medium weight twill fabric, the presence of the belt loops and nine exterior pockets, weigh against classification as swimwear. Such features are more suggestive of a multi-purpose garment whose principal use will not be as swimwear. Though the submitted sample meets the first two criteria of the Hampco court (i.e., elasticized waistband with drawstring, and inner lining), it does not meet the third criterion (i.e., designed and constructed as swimwear).

As there is no substantial supporting evidence for the fact that the submitted shorts are designed and constructed for swimming, Customs is of the position that the shorts are classifiable under heading 6203, HTSUSA.

HOLDING:

The submitted shorts, Style number H 433, are classified under subheading 6203.42.4050, HTSUSA, which provides for men's woven cotton shorts. The applicable rate of duty is 17 percent ad valorem. The textile 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 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

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