HQ 0955009 - Classification of men's woven shorts; swimwear v. shorts; Dri-F.I.T. lining; Coolmax; Hampco; swimwear describes garments used for swimming, not all articles related to water sports. - United States International Trade Commision Rulings

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HQ 955009

November 29, 1993

CLA-2 CO:R:C:T 955009 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4030

Linda Yamashita
Customs Administrator
One Bowerman Drive
Beaverton, Oregon 97005-6453

RE: Classification of men's woven shorts; swimwear v. shorts; Dri-F.I.T. lining; Coolmax; Hampco; swimwear describes garments used for swimming, not all articles related to water sports.

Dear Ms. Yamashita:

This is in response to your letter of August 27, 1993, requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a pair of men's woven shorts. A sample was provided to this office for examination.

FACTS:

The submitted sample, style number 155228, has a woven shell of 100 percent nylon taffeta and a Dri-F.I.T. knit liner of 100 percent polyester. It has a fully elasticized waistband with a functional drawstring, side seam inserted mesh pockets and a rear pocket with a partial Velcro closure. The garment features hemmed legs and a woven patch on the lower left front leg featuring the Nike corporate logo. Descriptive literature from Nike's spring catalogue refers to the article as the Hood River Short.

The properties of the Dri-F.I.T. fabric are described as follows:

Dri-F.I.T. fabric wicks moisture away from your skin to keep you dry and cool or dry and warm, depending on your needs. This benefit comes in a variety of unique fabric combinations that promote moisture transportation, thermal efficiency, lighter weight, and the stretch comfort of Lycra spandex. Whatever the need and the condition, Dri-F.I.T. fabrics offer a solution for the outdoor sports and fitness enthusiast.

The spring catalogue contains a page devoted to what is referred to as "swimwear." Several articles are grouped together in this section, including the Hood River Short. Pictured below the instant merchandise are the Swoosh Mesh Cap and the Mesh Signature Sport Duffle. The former is a baseball style cap, while the latter appears to be a travel or tote bag. A picture of the Water Warm-Up Top appears above the Hood River Short. This item is described separately as follows:

Water Warm-Up Top

Content: 7.0 oz., 60% cotton/40% polyester French terry.
Profile: A French terry hooded full-zip jacket with front pouch pockets, drawcords at hood and bottom hem, striped knit rib at cuffs, twill tape striping on hood and a NIKE SWIM patch at left chest, and an embroidered NIKE corporate logo on the lower-right sleeve.

ISSUE:

Whether the Hood River Short is classifiable under subheading 6211.11.1010, HTSUSA, which provides for men's swimwear of man-made fibers; or subheading 6203.43.4030, which provides for men's woven shorts of synthetic fibers?

LAW AND ANALYSIS:

The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, November 23, 1988, at page 21, state that:

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 waist with a drawstring and a full lightweight support liner. Garments which cannot be recognized as swim trunks will be considered shorts.

Thus, athletic shorts and swim trunks are classified separately, although they may closely resemble one another. The Guidelines indicate that swim trunks usually possess a drawstring and a lightweight liner. In addition, a pair of swim trunks must be recognizable as such.

In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court found that:

[I]n determining whether a garment falls within the purview of swimwear and not shorts, we have to look at the following features:

1. whether the garment has an 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. (Emphasis added).

The first criterion is satisfied in this instance, as the Hood River Short possesses an elasticized waistband through which a drawstring is threaded.

In Headquarters Ruling Letter (HRL) 952322, dated December 17, 1992, we observed:

The garments at issue, styles 110210 and 110197, meet the first criterion, i.e., they each have an elasticized waistband through which a drawstring is threaded. They also appear to meet the second criterion, i.e., they each have an inner lining of lightweight material. However, in finishing its second criterion, the court stated in regard to the lightweight material, "namely, nylon tricot"...Customs will not interpret the court's wording so narrowly as to say that for a garment to be considered swimwear its inner lining must be of nylon tricot. However, we do interpret the court's language to mean that a lightweight inner lining of nylon tricot is generally indicative of swimwear. When determining the classification of a garment with an inner lining of a material other than nylon tricot, Customs will consider the material from which the lining is made and whether it is of a type generally used in the manufacture of swimwear. This consideration goes to the heart of the court's third criterion, i.e., that the garment be designed and constructed for swimming. (Emphasis added).

As this passage indicates, the second and third criteria are related. Shorts which are not of a lightweight material such as nylon tricot are not designed and constructed for swimming.

The shorts which were the subject of HRL 952322 possessed a liner of a knit 100 percent polyester CoolMax fabric. The manufacturer of the liner promoted CoolMax as a fabric that would keep an athlete dry, cool and comfortable while participating in strenuous physical activity likely to cause perspiration. We pointed out that these properties were not desired in garments used for swimming. Rather, we concluded that the merchandise was designed for use as athletic shorts, suitable for use in activities such as running or cycling. Accordingly, these items were classified not as swimwear, but as men's shorts.

Similarly, the Hood River Short features a lining that "wicks moisture away from your skin to keep you dry and cool or dry and warm, depending on your needs." The fabric is said to "promote moisture transportation" and "thermal efficiency." It has been designed with the "outdoor sports and fitness enthusiast" in mind. Apparently, the Dri-F.I.T. lining has been constructed, designed and marketed to keep moisture away from the skin and to keep one warm or cool as the situation requires. These characteristics are not normally associated with a pair of swimming trunks. For these reasons, we conclude that the instant garment has not been designed and constructed for swimming. Hence, it shall be classified as a pair of men's shorts.

Although this matter has been resolved on the basis of the design of the garment, we also wish to comment on the manner in which it has been marketed. As noted above, the shorts have been grouped with a cap, a travel bag and a zippered jacket under the caption "swimwear." We infer from this fact that you consider these articles to be "swimwear" on the basis that they bear some relation to water sports or water recreation.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international 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 EN when interpreting the HTSUSA.

Subheading 6211.11, HTSUSA, encompasses men's woven swimwear. The EN to heading 6211, at page 856, state that the provisions of the EN to heading 6112 concerning swimwear apply to heading 6211. The EN to heading 6112 provide, at page 842, that the heading includes:

Swimwear (knitted or crocheted one-piece or two-piece bathing costumes, swimming shorts and trunks, whether or not elastic). (Emphasis added).

Moreover, the third criterion set forth by the Court in Hampco refers to garments designed and constructed for swimming. Taken together, the EN to heading 6112 and the Hampco decision suggest that the "swimwear" designation is reserved for garments to be worn when bathing or swimming.

Assuming that the articles marketed together as part of your "swimwear" collection bear some relation to water sports, they will not be classified as "swimwear" for tariff purposes. The Sport Duffle is not a garment and cannot be worn when swimming or bathing. Furthermore, the Water Warm-Up Top is a hooded zippered jacket that appears to be designed to keep one dry and warm. It is highly unlikely that it will be used underwater. Finally, the Swoosh Mesh Cap is constructed so as to protect the head from the elements, and not as a bathing cap. We will not interpret the swimwear provisions of the tariff schedule so expansively that they include articles that are merely related to water sports. Therefore, the marketing information in our possession does not support the classification of the Hood River Short as swimwear.

HOLDING:

The subject merchandise is classifiable under subheading 6203.43.4030, HTSUSA, which provides for 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. The textile quota category is 647.

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 the subject of 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

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