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HQ 955782





May 3, 1994

CLA-2 CO:R:C:T 955782

CATEGORY: CLASSIFICATION

TARIFF NO.: 6103.42.1070

Ms. Monica K. Keim
350 Fifth, Ltd.
Empire State Building, Suite 4502
350 Fifth Avenue
New York, NY 10118

RE: Classification of boys' lower body garment; swimwear v. shorts; Hampco

Dear Ms. Keim:

This is in response to your inquiry of December 30, 1993, on behalf of your client, Sear's Roebuck & Co., requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a boy's lower body garment. A sample was submitted for examination.

FACTS:

The submitted sample, Style No. SBS4041, is a boy's lower body garment that is constructed of 100 percent knit cotton shell fabric and 100 percent knit jersey cotton liner. The shell weighs 6.5 ounces per square yard and the liner weighs 4.5 ounces per square yard. The garment contains a fully elasticized waistband with a drawstring for tightening, two inserted side seam pockets, a rear patch pocket, and is hemmed. Also, the sample garment, size small, measures 19 1/4 inches from the top of the waistband to the hemmed leg bottom. The garment size range is 8-20. A copy of a catalog page depicting the instant garment was submitted. The catalog described the subject garment as a "pull-on jersey active bottom."

ISSUE:

Whether Style SBS4041 is classifiable as boys' swimwear under Heading 6112, HTSUSA, or as boys' shorts under Heading 6103, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade was faced with the issue of distinguishing shorts from swimwear. The court presented three criteria for determining whether a garment is swimwear. The three criteria are listed 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 is designed and constructed for swimming.

The garment at issue, Style SBS4041, meets the first criterion listed in Hampco, as it contains an elasticized waistband through which a drawstring is threaded. It is questionable, however, as to whether the subject garment meets the second criterion presented in Hampco. The garment contains an inner lining made of cotton knit jersey material and not nylon tricot. In Headquarters Ruling Letter (HRL) 952322, dated December 17, 1992, Customs addressed the courts second criterion and stated the following:

[I]n finishing its second criterion, the court stated in regard to the lightweight material, "namely, nylon tricot".***Customs will not interpret the court's wording so narrowly as to say that for a garment to be considered swimwear its inner lining must be of nylon tricot. However, we do interpret the court's language to mean that a lightweight inner lining of nylon tricot is generally indicative of swimwear. When determining the classification of a garment with an inner lining of a material other than nylon tricot, Customs will consider the material from which the lining is made and whether it is of a type generally used in the manufacture of swimwear. This consideration goes to the heart of the court's third criterion, i.e., that the garment be designed and constructed for swimming.

The subject garment's inner lining is constructed of cotton knit jersey material which is a highly absorbent fabric. As a result of this absorbency, the garment would be impractical and uncomfortable for wear during swimming. The liner would soak up water and be slow to dry.

Finally, when examining the instant garment in light of the court's third criterion, it is apparent that the garment is not designed and constructed for swimming. The shell fabric is also constructed of a highly absorbent knit jersey cotton fabric. As stated above, the garment would retain moisture and adhere to the wearer during swimming. Also, the garment features a rear patch pocket which is uncommon in swimwear. A rear patch pocket is a utilitarian characteristic common in outerwear. Finally, a catalog page submitted by you refers to the subject garment as a "pull-on jersey active bottom". This description accurately describes a pair of outerwear shorts and not swimwear. The advertising information does not mention that the garment is intended for use as swimwear. Therefore, due to the garment's physical characteristics as well as the submitted advertising information, Style SBS4041 is classifiable as boys' shorts in Heading 6103, HTSUSA.

HOLDING:

Style SBS4041 is classifiable in subheading 6103.42.1070, HTSUSA, which provides for boys' knit cotton shorts. The rate of duty is 17.1 percent ad valorem and the textile restraint 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 renegotiations 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 internal issuance of the U.S. Customs Service, which 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 applicable to textile merchandise, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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