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HQ 953040


December 17, 1992

CLA-2 CO:R:C:T 953040 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6203.43.4030

Ms. Christy Miller
NIKE, Inc.
One Bowerman Drive
Beaverton, Oregon 97005-6453

RE: Revocation of HRL 951812 of August 5, 1992; classification of style 110166, men's shorts, as swimwear--revoked

Dear Ms. Miller:

The Customs Service has had reason to reexamine the classification determination in HRL 951812 of August 5, 1992 issued to NIKE and classifying a pair of men's shorts, style 110166, as swimwear.

FACTS:

Style 110166 is a pair of men's woven 100 percent nylon shorts featuring an elasticized waistband with a drawstring, a liner of CoolMax 100 percent polyester jersey and an inside key pocket. The NIKE logo is embroidered on the left front hip of the garment. The shorts have a boxy style and also feature side vents.

HRL 951812 classified style 110166 as swimwear, basing the decision on the Court of International Trade's decision in Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988). Customs has recently received information regarding the lining fabric used in the construction of style 110166 which has caused us to review our decision in HRL 951812.

ISSUE:

Was style 110166 correctly classified as swimwear in HRL 951812, or should the garment be classified as men's shorts?

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]."

Customs recently received information regarding the CoolMax fabric which is used as the lining material in style 110166. The information was sought in connection with NIKE's request for classification of two other garments, styles 110210 and 110197, utilizing the CoolMax fabric for their liners. A lengthy discussion of the information received and Customs interpretation of it may be found in our response to the classification request for these styles in HRL 952322.

We will not go into great length herein, but refer you to the discussion in HRL 952322. It is sufficient to state herein that Customs believes that the CoolMax fabric is promoted and intended for use in garments worn by individuals participating in strenuous physical activities likely to produce perspiration. We believe the key feature of the CoolMax fabric, the ability to keep an athlete cool and comfortable, is not truly a feature sought in swimwear, but a feature sought in running shorts, cycling shorts, etc. Staying cool, comfortable and dry while participating in one's sport are not needs Customs would expect a swimmer to have, especially staying dry.

U.S. Additional Rule of Interpretation 1(a) directs that a tariff classification controlled by use shall be determined by the principal use of the good in the United States, at or immediately prior to importation, of goods of the class or kind to which the imported good belongs.

Customs believes the principal use of a garment designed and constructed utilizing a fabric promoted for its wickability, breathability and dryability is not as swimwear. We believe that such garments will be principally used in the pursuit of strenuous physical activities likely to produce perspiration, such as, running, playing tennis, biking, etc. Those engaged in such activities would benefit most from a garment featuring a fabric designed specifically to help remove perspiration from the body and keep the athlete cool. Swimming is not such an activity, especially since one is immersed in water. There is no need to wick away perspiration or keep one cool and dry while swimming. It is possible style 110166 could be worn for swimming, but Customs believes such use would be a fugitive use and would not be the use for which the garment is primarily purchased. -3-

Therefore, based upon the new information Customs has received regarding the CoolMax fabric and pursuant to 19 CFR 177.9(d), HRL 951812 is hereby revoked.

HOLDING:

Style 110166 is correctly classified as men's shorts of synthetic fiber in subheading , HTSUSA, textile category 647, dutiable at 29.7 percent ad valorem.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking HRL 951812, effective with the date of this letter. If after your review of this ruling letter, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of the date of this letter.

This notice to you should be considered a revocation of HRL 951812 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 951812 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, this revocation of HRL 951812 will be in effect. We recognize that pending transactions may be adversely affected by this modification in that current contracts for importation arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and may apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

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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