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HQ 959071




October 4, 1996

CLA-2 RR:TC:TX 959071 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

Ms. Ellen B. Adler
Vice President
Barian Shipping Co., Inc.
910 Railroad Avenue
Woodmere, NY 11598

RE: Men's woven nylon shorts; Heading 6211; Swimwear; Heading 6203; Superseding Decision;
PC 8188043

Dear Ms. Adler:

This is in reply to your letter of March 5, 1996, on behalf of Fila Sports, Inc., requesting modification of Pre-Classification Ruling Letter (PC) 818043, dated January 12, 1996.

Customs issued PC 818043 on January 12, 1996, classifying the subject merchandise as shorts under heading 6203 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). At the pre-classification review, a Customs National Import Specialist (NIS) asked one of your client's representatives what was the intended use of the garment. The NIS was informed that the garment was a pair of shorts. You now contend that the garment is swimwear and is part of your client's "Aquatime" collection.

FACTS:

The sample merchandise you submitted is a pair of men's woven nylon shorts, style number 1973-1312. It has a covered fully elasticized waistband with a functional drawstring, no fly, a knit polyester lining, side seam inserted pockets and hemmed leg bottoms. The "Fila" emblem is embroidered on the lower left leg of the garment.

ISSUE:

Whether the merchandise in question is classifiable as men's swimwear under heading 6211, or as men's shorts under heading 6203, HTSUSA?

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, taken in their appropriate order.

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88 (November 23, 1988), 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 can not be recognized as swim trunks will be considered shorts.

The Court of International Trade reviewed these guidelines in Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), when it held that the following factors should be considered for a garment to be classified as swimwear:

(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; and
(3) whether the garment is designed and constructed for swimming.

The court also stated that if a garment does not have an inner lining and has a fly front, it would be considered shorts. Id.

The garment in this case clearly satisfies the three elements of the Hampco decision. It has an elasticized waistband through which a drawstring is threaded and an inner lining of light weight material. Furthermore, the garment is constructed of lightweight, absorbent woven nylon which drys quickly. It does not have a fly. For these reasons, in conjunction with our examination of the sample, we find that the garment is designed and constructed for swimming and is, therefore, properly classifiable under subheading 6211.11.1010, HTSUSA. HOLDING:

The garment is question is classified under subheading 6211.11.1010, which provides for "Track suits, ski-suits and swimwear; other garments: Swimwear: Men's or boys": Of man-made fibers
. . .Men's." The swimwear is dutiable at the column one general rate of 29.2 percent ad valorem, and the textile category is 659. This ruling supersedes PC 818043 with respect to the garment here in issue.

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, you should contact your local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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