CLA-2 CO:R:C:T 089579 jlj
Peter J. Allen
Neville, Peterson & Williams
39 Broadway
New York, New York 10008
RE: Classification of Boys' Nylon Shorts; Not Swimwear
Dear Mr. Allen:
In your letter of June 5, 1991, you requested a tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) for certain boys' shorts on behalf of
your client, Longstreet Industries. You submitted a sample of
the shorts along with your request. As requested, your sample
is being returned under separate cover.
FACTS:
The instant merchandise is a pair of boys' shorts made
of two fabric shells sewn together at the fully elasticized
waistband. There is a drawstring closure at the waist.
The inner shell resembles tight shorts and is made of black
knit nylon fabric. The outer shell resembles boxer shorts and is
made of translucent yellow woven nylon fabric. The bottom of the
tight shorts is visible below the outer shorts, giving the item a
double-layered look without requiring different layers.
The woven outer shell has two side pockets, a rear pocket
with a button closure and a hemmed bottom. Style 547454 will be
imported in boys' sizes 4 to 7. Style 74754 will be imported in
boys' sizes 8 to 14.
No descriptive literature, sales brochures covering the
product or other additional information beyond the sample and
your letter were submitted to this office.
-2-
ISSUE:
Is this merchandise classified as shorts in Heading 6203,
HTSUSA, or as swimwear in Heading 6211, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRIs),
taken in order. GRI 1 provides that classification shall be
according to the terms of the headings and any relative section
or chapter notes.
You maintain that the instant pair of shorts should be
classified under the provision for boys' swimwear of man-made
fibers in subheading 6211.11.1020, HTSUSA. You cite several
court cases and Customs ruling letters in support of your
position.
In Hampco Apparel, Inc. v. United States, Slip Op. 88-12
(decided January 28, 1988), the Court of International Trade
defined the swimwear before it as "a garment which has an
elasticized waistband with a drawstring, and a liner of nylon
tricot, designed and used for swimwear." Customs Headquarters
Ruling Letter (HRL) 081447 of March 21, 1988, stated that
Customs will treat as swimwear all garments possessing these
criteria, although the liner need only be a lightweight one.
You contend that the instant shorts have an elasticized
waistband, a drawstring, a permanently affixed inner lining of
lightweight material, and that the merchandise has been designed,
manufactured and marketed to be used as swimwear. No evidence
or additional information was submitted to support the claim that
the instant merchandise is designed and marketed as swimwear.
You state that, while the merchandise may be used in other
ways (e.g., as bicyling pants or exercise shorts), this usage
does not detract from its primary purpose as swimwear. No
evidence is offered regarding the principal use of these shorts.
The instant garment has both an elasticized waistband and
a drawstring, but the inner shell, unlike the usual swimwear
lining, consist of a knit, close fitting nylon fabric which
extends below the outer shorts, giving the item a double-layered
look. Without the outer shell, the inner garment would resemble
a short pair of bicycle pants.
-3-
In view of the factors mentioned above which distinguish
the instant shorts from swimwear, we find that this is a
multipurpose activewear garment designed for a variety of
outdoor uses during warm weather. This item is not constructed
specifically for use as swimwear.
The issue which remains to be decided, is how the garment
is classified. Inasmuch as the garment is made up of two
distinct parts (the inner knit shorts and the outer woven shell),
it is a composite article which is classified according to GRI 3,
HTSUSA:
3. When...goods are, prima facie, classifiable under
two or more headings, classification shall be
effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description.
However, when two or more headings each refer
to part only of the materials or substances
contained in mixed or composite goods...those
headings are to be regarded as equally
specific in relation to those goods, even if
one of them gives a more complete or precise
description of the goods.
(b) ...composite goods consisting of different
materials or made up of components...which
cannot be classified by reference to 3(a),
shall be classified as if they consisted of
the material or component which gives them
their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference
to 3(a) or 3(b), they shall be classified
under the heading which occurs last in
numerical order among those which equally
merit consideration.
The instant garment has two separate parts, one knit portion
(classifiable in Heading 6103) and one woven portion
(classifiable in Heading 6203). The garment cannot be
classified by GRI 3(a), since both the knit and the woven
headings are regarded as equally specific.
-4-
Inasmuch as both articles provide important elements to
the garment (the knit inner shorts provide protection and
comfort, while the outer shell provides a fashionable look and
functional pockets), there are arguments supporting either part
as the essential character of the garment under GRI 3(b), HTSUSA.
We find that neither portion clearly imparts the essential
character in this case. Therefore, it is reasonable to proceed
to GRI 3(c), HTSUSA.
Between the two competing tariff provisions, Heading 6203
occurs last in numerical order, therefore the instant pair of
shorts is classified in that heading.
HOLDING:
Following the facts and the rationale presented above, we
hold that the instant shorts, Styles 547454 and 74754, are
classified under the provision for boys' shorts of synthetic
fibers, in subheading 6203.43.4040, HTSUSA, dutiable at the rate
of 29.7 percent ad valorem. Textile category 647 applies to
merchandise classified under this subheading.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.
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. Inasmuch
as 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 that 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
available for inspection at your local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division
Johnson library/peh
089579
6cc A.D., Seaport
2cc C.I.E.