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HQ 952392


January 27, 1992

CLA-2 CO:R:C:T 952322 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.43.4030

Ms. Linda Yamashita
NIKE, Inc.
One Bowerman Drive
Beaverton, Oregon 97005-6453

RE: Classification of certain men's shorts, styles 120100 & 120003; swimwear v. shorts; 6211, HTSUSA v. 6203, HTSUSA; Hampco Apparel

Dear Ms. Yamashita:

This ruling is in response to your request of July 16, 1992 regarding the classification of certain men's garments, styles 120100 and 120003. The garments will be manufactured in Thailand.

FACTS:

Sample garments of styles 120100 and 120003 were received with the submission. Both garments have woven nylon outer shells, fully elasticized waistbands with functional drawstrings and knit jersey linings of 65 percent polyester and 35 percent cotton. Style 120003 has side vents, side seam pockets, a rear pocket and is approximately 15 inches from the top of the waistband to its hemmed bottom. Style 120100 has diagonal front pockets and is approximately 16 inches from the top of the waistband to its hemmed bottom. Both samples have the NIKE swoosh logo embroidered on the lower left front leg.

The materials submitted by NIKE as advertising/marketing materials are merely pages picturing the garments and identifying them as: 120100 cross-training color-blocked ripstop short and 120003 core taffeta short. Accompanying pages appear to be order forms with descriptions of the garments including the available colors and color codes. The descriptions on the order forms identify the garments in the same manner as the picture pages.

ISSUE:

Are the garments at issue classifiable as shorts of 6203, HTSUSA, or as swimwear in heading 6211, HTSUSA? -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 Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, also provide guidance 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 -3-
waist with a drawstring and a full lightweight support liner. Garments which cannot be recognized as swim trunks with be considered shorts. (emphasis added.)

In HRL 081477 of March 21, 1988, Customs stated that in order to determine whether a garment is designed and constructed for swimming, we will first look at the appearance of the garment. If the appearance is inconclusive, the following evidence will be considered: 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 [under the current tariff the standard is principal use].

HRL 951841 of August 11, 1992 classified merchandise substantially similar to the goods at issue herein as shorts. The ruling cited Customs consistency in ruling that in those instances where the first two factors enumerated by the court in Hampco are present, but the third factor is lacking, the article will be considered shorts. See, HRL 086436 of May 3, 1990; HRL 086979 of May 15, 1990; HRL 087476 of September 7, 1990; HRL 950207 of December 3, 1991 and HRL 950652 of February 12, 1992.

The garments at issue, styles 120100 and 120003, meet the first two criteria of Hampco, i.e, they each have an elasticized waistband through which a drawstring is threaded and they each have an inner lining of lightweight material. However, Customs does not believe the garments at issue meet the third criterion of the court, i.e., that the garments were designed and constructed for swimming. The appearance of the garments is inconclusive; therefore, we will look to other factors previously mentioned.

The advertising/marketing materials submitted to Customs show styles 120100 and 120003 pictured with other outerwear garments, i.e., jackets, trousers, and pullover tops. The garments appear to be part of a collection of coordinated outerwear garments. This impression is reinforced by the order forms which indicate the garments are all available in coordinating colors. Additionally, in your submissions you do not refer to the garments as swimwear, but as shorts. You make no claim that the garments are swimwear or that the are designed, manufactured, marketed or advertised as swimwear. You merely request confirmation that the garments are classifiable as swimwear.

Based upon an examination of the garments at issue and a review of the information submitted to Customs by you, we cannot confirm the classification you have requested. Styles 120100 and 120003 are not classifiable as swimwear; they are classifiable as men's shorts. -4-

HOLDING:

Styles 120100 and 120003 are classifiable as men's woven shorts of synthetic fibers in subheading 6203.43.4030, HTSUSA, textile category 647, dutiable at 29.7 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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