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HQ 950602


December 3, 1991

CLA-2 CO:R:C:T 950602 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4030; 6203.43.4040

Ms. Christy Miller
Customs Administrator
Nike, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453

RE: Shorts; swimwear; Hampco; design; construction; tag; draw- string; waistband; catalog; logo

Dear Ms. Miller:

This is in reply to your letter of September 16, 1991, to our New York Seaport office. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of shorts, produced in Thailand and Malaysia.

FACTS:

The merchandise at issue consists of five samples of men's and boys' shorts, Style Nos. 350065 (men's), 350048 (men's), 460174 (boys'), 460124 (boys'), and 460148 (boys'). Each sample has a woven nylon shell, and a knit liner of 65% polyester and 35% cotton. Each sample has a fully elasticized waistband and a fully functional drawstring. All styles but 350048 have side seam pockets; the latter has diagonal front pockets, and a rear pocket, with Velcro -like closures. Style Nos. 350065 and 350048 have the acronym ACG (All Conditions Gear) embroidered on the left leg. Style No. 460124 has a patch on the left leg with the words "challenge court" and a flaming tennis ball embroidered on it. Style Nos. 460174 and 460148 have the name "Jordan" and the image of a basketball player embroidered on the left leg.

ISSUE:

Whether the instant merchandise is considered swimwear or active wear under the HTSUSA?

2

LAW AND ANALYSIS:

Heading 6211, HTSUSA, provides for, inter alia, men's and boys' swimwear. The Explanatory Notes (EN) to the HTSUSA consti- tute the official interpretation of the tariff at the interna- tional level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to heading 6112, which applies, mutatis mutandis, to heading 6211, describes swimwear as "(...one-piece or two-piece bathing cos- tumes, swimming shorts and trunks, whether or not elastic)." The instant merchandise seems to meet this broad definition.

In Hampco Apparel, Inc. v. United States, Slip Op. 88-12 (January 28, 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 materi- al, and

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

The instant shorts have the first two factors listed above. They could be used for swimming. We therefore must decide if they are "designed and constructed for swimming."

In HRL 081447 of March 21, 1988, we stated that, in order to determine whether a garment is designed and constructed for swimming, we would first look at the appearance of the garment. If the appearance is inconclusive, as in the instant shorts, evidence of the way in which the garment has been designed, manufactured, marketed or advertised, the way in which the manufacturer or importer intends the garment to be used, and the way in which a garment is chiefly used will be considered.

The instant shorts are clearly designed and constructed as active wear shorts for uses other than swimwear, as indicated by the embroidered sports logos, the attached tags describing some of the shorts as "fitness" apparel, and the placement of some of the garments with clearly sports-oriented outerwear in your 1992 sales representatives sizing, policy and procedures manual. They are therefore classifiable in heading 6203, HTSUSA, as woven shorts. See also HRL 086436 of May 3, 1990 (volleyball shorts).

3

HOLDING:

As a result of the foregoing, the instant merchandise is classified as follows:

Styles 350065 and 350048 (Men's)

... under subheading 6203.43.4030, HTSUSA, textile category 647, as men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), trousers, bib and brace overalls, breeches and shorts, of synthetic fibers, other, other, other, other, other, shorts, men's. The applicable rate of duty is 29.7 percent ad valorem.

Styles 460174, 460124 and 460148 (Boys)

... under subheading 6203.43.4040, HTSUSA, textile category 647, as men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), trousers, bib and brace overalls, breeches and shorts, of synthetic fibers, other, other, other, other, other, shorts, boys', other. The applicable rate of duty is 29.7 percent ad valorem.

The designated textile and apparel category may be subdivid- ed 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 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 status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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