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HQ 960628




September 10,
1997

CLA-2 RR:TC:TE 960628 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4030

Ms. Micki Mallory
NIKE, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453

RE: Men's woven nylon shorts; not swimwear, heading 6211, HTSUSA; shorts, heading 6203, HTSUSA; PC A82442 superseded

Dear Ms. Mallory:

We have reconsidered PC A82442 dated May 16, 1996, concerning the preclassification of men's football/soccer team shorts. A sample was provided to this office for examination.

FACTS:

The sample, Style Number 156988, is a pair of men's shorts with a woven 100% nylon shell and a knit full liner of 65% polyester and 35% cotton jersey knit. It has a fully elasticized waistband with a functional drawstring. The garment has overlaid stripes at the side seams and at the hemmed leg openings. It has reinforced side seam vents. The garment has an interior waistband label containing the name as well as the swoosh trademark of NIKE. The swoosh NIKE trademark is embroidered on the lower left leg. The sample was produced in Sri Lanka.

ISSUE:

Whether the submitted sample was properly classified under men's swimwear, heading 6211, HTSUSA, or men's shorts, heading 6203, 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. (Emphasis added).

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 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

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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.

The garment at issue, style 156988, has an elasticized waistband with a functional drawstring. Thus the submitted sample seems to meet the first of the three criteria enumerated by the court in Hampco.

However, in finishing its second criteria, the court stated in regard to the lightweight material, "namely nylon tricot". Namely is defined in Webster's II New Riverside University Dictionary (2984) at 783, as "That is to say SPECIFICALLY." In other words, in referring to an inner lining of lightweight material the court was referring specifically to a lining of nylon tricot.
Customs does 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 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 criteria, i.e., that the garment be designed and constructed for swimming.

The sample at issue has an inner lining made of 65% polyester and 35% cotton jersey knit. The appearance and weight of the liner resembles cotton underpants. Thus the liner is not the type generally used in the manufacture of swimwear as it is neither mesh nor lightweight.

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 overlays as well as an embroidered NIKE logo. The label indicates that the sample is to be ironed (with the exception of the design) with a warm iron, and can be dry cleaned. These features are indicative of a multi-purpose garment whose principal use will not be as swimwear. Though the shorts meet the first criteria of the Hampco court (i.e., elasticized waistband with drawstring) it does not meet the second as it does not have an inner lining generally used in the manufacture of swimwear. In addition, the NIKE Registration Sheet for style 156988 indicates it is a men's football/soccer team America short. It, therefore, also 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 6203, HTSUSA, as shorts.

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HOLDING:

The submitted shorts, style 156988, are properly classified under subheading 6203.43.4030, HTSUSA, which provides for men's woven shorts of synthetic fibers. The applicable general rate of duty is 29.2 percent ad valorem. The textile category is 647.

PC A82442 of May 16, 1996, is hereby superseded by this decision with respect to the garment here in issue. This decision is effective 60 days from the date of this ruling.

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.

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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