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HQ 960437




September 9,
1997

CLA-2 RR:CT:TE 960437 SG

CATEGORY: CLASSIFICATION

TARIFF NO: 6103.43.1570

Margaret R. Polito, Esq.
Neville, Peterson & Williams
80 Broad Street
New York, New York 10004

RE: Boy's knit nylon shorts; not swimwear, heading 6112 HTSUSA; shorts, heading 6103, HTSUSA

Dear Ms. Polito:

This is in response to your letter dated March 25, 1997, on behalf of your client, Longstreet, a division of Stretch-O-Rama, Inc., requesting classification, under the Harmonized Tariff Schedules of the United States Annotated (HTSUSA), of a pair of boy's nylon shorts. A sample was provided to this office for examination and will be returned under separate cover.

FACTS:

The sample, Style Number 100, is a pair of boy's shorts with a knit 100% nylon fabric shell and a mesh liner of nylon tricot. It has a fully elasticized waistband with a functional drawstring. The garment has red and white striped piping at the leg openings and the number 23 appliqued on its lower left leg. The garment has a relaxed fit and extends midway down the thigh of the wearer. It does not have a fly.

ISSUE:

Whether the submitted sample was classifiable under boy's swimwear, heading 6112, HTSUSA, or boy's shorts, heading 6103, HTSUSA?

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LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied, in the order of their appearance.

In Hampco Apparel, Inc. v. United States, 12 CIT 92 (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 material, namely nylon tricot, and

(3) the garment is designed and constructed for swimming

Beyond possessing the listed criteria, the court determined that the garment at issue 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, November 23, 1988, also provide guidelines 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 waist with a drawstring and a full lightweight support liner. Garments which cannot be recognized as swim trunks will be considered shorts.

In Headquarters Ruling Letter (HRL) 081477, dated March 21, 1988, we 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 supportive 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

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used, and the way in which a garment is chiefly used. A classification determination is thus based on a two prong analysis, that is, first an examination of the physical features of the garment, and in circumstances where that provides inconclusive, an examination of the supporting evidence. Customs has been consistent in ruling that even 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.

Although the sample garment has an elasticized waistband with a functional drawstring and a nylon tricot liner, several factors lead us to the belief that the submitted shorts are not designed and constructed as swimwear. The sample garment has a satiny finish and red and white piping at the leg openings as well as an appliqued number 23 on its left lower leg. The sample does not have the appearance of swimwear. It looks like a pair of athletic shorts.

The red and white piping on the submitted sample resembles the colors of the Chicago Bulls team uniform. The number 23 is worn by Michael Jordan, one of the most famous basketball players in the world. HQ 950602 classified as shorts a garment with the name "Jordan" and the image of a basketball player embroidered on the left leg. The number 23 suggests the same thing when taken in conjunction with the overall appearance of the shorts and its piping suggestive of the Chicago Bulls colors. In addition, these features are indicative of a garment designed to be used as a sports short rather than as swimwear. Though the sample meets the first two criteria of the Hampco court (i.e., elasticized waistband with drawstring, and nylon tricot liner). It does not meet the third criterion (i.e., designed and constructed as swimwear).

As there is no support for the fact that the submitted shorts are designed and constructed for swimming, Customs is of the position that the shorts are properly classifiable under heading 6103, HTSUSA, as boys shorts.

HOLDING:

The submitted shorts, Style 100, are properly classified under subheading 6103.43.1570, HTSUSA, which provides for boy's knit shorts of synthetic fibers. The applicable general rate of duty is 29.5 percent ad valorem. The textile 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 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 the local Customs office.

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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
Commercial Rulings Division

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