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HQ 960646




December 16,
1997

CLA-2 RR:TC:TE 960646 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.42.4050

Mr. Stanley J. Schwartz
Barian Shipping Company, Inc.
910 Railroad Avenue
Woodmere, New York 11598

RE: Men's woven cotton shorts; not swimwear, heading 6203, HTSUSA; shorts, heading 6211 , HTSUSA

Dear Mr. Schwartz:

This is in response to your letter dated May 22, 1997, on behalf of your client, Fila Sports, Inc,. requesting classification, under the Harmonized Tariff Schedules of the United States Annotated (HTSUSA), of a pair of men's woven shorts. A sample was provided to this office for examination.

FACTS:

The sample, Style Number 33762813/110, is a pair of men's shorts with an outer shell of 70% cotton and 30% nylon woven fabric. It has a mesh liner of knit polyester fabric. The garment measures 15 « inches from the waist to the hem of the leg. It has two side seam pockets with partial mesh and partial woven linings, a flapped rear pocket with a VELCRO-type closure and a mesh lining. Slightly below the waistband there is a flapped exterior coin pocket with a snap closure and mesh lining. It also has an interior coin pocket on the waistband with a woven lining. The waistband of the garment contains a snap closure. The rear section of the waistband is elasticized, the front section of the waistband is flat and is not elasticized, and at approximately two inches on either side of the waistband's snap closure the garment contains an inside opening approximately « inches in length. However the garment contains no drawstring. The garment has a fly front opening with a VELCRO-type closure. The garment has two fabric overlays approximately one inch wide and one inch apart on either side of the right side seam. The word FILASPORT and the letters FS are embroidered on the front left lower leg of the garment. The garment is made in Thailand.

2

ISSUE:

Whether the submitted sample is classifiable as men's swimwear of heading 6211, HTSUSA, or men's shorts of 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.

In Hampco Apparel, Inc. v. United States,12 CIT 92 (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

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.

In the instant case it is apparent that the submitted sample does not meet the first criteria of Hampco, there is no drawstring threaded through an elasticized waistband. Without a drawstring, the garment does not satisfy the Hampco test and the presence of both a snap waistband closure and a fly front, as well as the numerous pockets tend to be indicative of the garment's status as shorts. In The Textile Category Guidelines, C.I.E. 13/88, it was recognized that "[G]arments which cannot be recognized as swim trunks will be considered shorts."

Although you assert that the submitted sample is designed and constructed for swimming, you have provided no support for your assertion that the submitted shorts are, in fact, designed and constructed for swimming.

Inasmuch as the shorts do not meet the three criterion of Hampco, Customs is of the position that the shorts are properly classifiable under heading 6203, HTSUSA.

3

HOLDING:

The submitted short, Style 33762813/110, is properly classified under subheading 6203.42.4050, HTSUSA, which provides for men's woven shorts of cotton fibers. The applicable rate of duty as of January 1, 1998, is 17.3 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
Commercial Rulings Division

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