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HQ 089579

October 18, 1991

CLA-2 CO:R:C:T 089579 jlj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4040

Peter J. Allen
Neville, Peterson & Williams
39 Broadway
New York, New York 10008

RE: Classification of Boys' Nylon Shorts; Not Swimwear

Dear Mr. Allen:

In your letter of June 5, 1991, you requested a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for certain boys' shorts on behalf of your client, Longstreet Industries. You submitted a sample of the shorts along with your request. As requested, your sample is being returned under separate cover.

FACTS:

The instant merchandise is a pair of boys' shorts made of two fabric shells sewn together at the fully elasticized waistband. There is a drawstring closure at the waist.

The inner shell resembles tight shorts and is made of black knit nylon fabric. The outer shell resembles boxer shorts and is made of translucent yellow woven nylon fabric. The bottom of the tight shorts is visible below the outer shorts, giving the item a double-layered look without requiring different layers.

The woven outer shell has two side pockets, a rear pocket with a button closure and a hemmed bottom. Style 547454 will be imported in boys' sizes 4 to 7. Style 74754 will be imported in boys' sizes 8 to 14.

No descriptive literature, sales brochures covering the product or other additional information beyond the sample and your letter were submitted to this office.

ISSUE:

Is this merchandise classified as shorts in Heading 6203, HTSUSA, or as swimwear in Heading 6211, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be according to the terms of the headings and any relative section or chapter notes.

You maintain that the instant pair of shorts should be classified under the provision for boys' swimwear of man-made fibers in subheading 6211.11.1020, HTSUSA. You cite several court cases and Customs ruling letters in support of your position.

In Hampco Apparel, Inc. v. United States, Slip Op. 88-12 (decided January 28, 1988), the Court of International Trade defined the swimwear before it as "a garment which has an elasticized waistband with a drawstring, and a liner of nylon tricot, designed and used for swimwear." Customs Headquarters Ruling Letter (HRL) 081447 of March 21, 1988, stated that Customs will treat as swimwear all garments possessing these criteria, although the liner need only be a lightweight one.

You contend that the instant shorts have an elasticized waistband, a drawstring, a permanently affixed inner lining of lightweight material, and that the merchandise has been designed, manufactured and marketed to be used as swimwear. No evidence or additional information was submitted to support the claim that the instant merchandise is designed and marketed as swimwear.

You state that, while the merchandise may be used in other ways (e.g., as bicyling pants or exercise shorts), this usage does not detract from its primary purpose as swimwear. No evidence is offered regarding the principal use of these shorts.

The instant garment has both an elasticized waistband and a drawstring, but the inner shell, unlike the usual swimwear lining, consist of a knit, close fitting nylon fabric which extends below the outer shorts, giving the item a double-layered look. Without the outer shell, the inner garment would resemble a short pair of bicycle pants.

In view of the factors mentioned above which distinguish the instant shorts from swimwear, we find that this is a multipurpose activewear garment designed for a variety of outdoor uses during warm weather. This item is not constructed specifically for use as swimwear.

The issue which remains to be decided, is how the garment is classified. Inasmuch as the garment is made up of two distinct parts (the inner knit shorts and the outer woven shell), it is a composite article which is classified according to GRI 3, HTSUSA:

3. When...goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.
However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods...those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) ...composite goods consisting of different materials or made up of components...which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The instant garment has two separate parts, one knit portion (classifiable in Heading 6103) and one woven portion (classifiable in Heading 6203). The garment cannot be classified by GRI 3(a), since both the knit and the woven headings are regarded as equally specific.

Inasmuch as both articles provide important elements to the garment (the knit inner shorts provide protection and comfort, while the outer shell provides a fashionable look and functional pockets), there are arguments supporting either part as the essential character of the garment under GRI 3(b), HTSUSA. We find that neither portion clearly imparts the essential character in this case. Therefore, it is reasonable to proceed to GRI 3(c), HTSUSA.

Between the two competing tariff provisions, Heading 6203 occurs last in numerical order, therefore the instant pair of shorts is classified in that heading.

HOLDING:

Following the facts and the rationale presented above, we hold that the instant shorts, Styles 547454 and 74754, are classified under the provision for boys' shorts of synthetic fibers, in subheading 6203.43.4040, HTSUSA, dutiable at the rate of 29.7 percent ad valorem. Textile category 647 applies to merchandise classified under this subheading.

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 importation of this merchandise to determine the current status of any import restraints or requirements.

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. Inasmuch as 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.

Sincerely,

John Durant, Director

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