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HQ 957409




January 27, 1995

CLA-2 CO:R:C:T 957409 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

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.

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

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