CLA-2 CO:R:C:T 950602 HP
Ms. Christy Miller
Customs Administrator
Nike, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453
RE: Shorts; swimwear; Hampco; design; construction; tag; draw-
string; waistband; catalog; logo
Dear Ms. Miller:
This is in reply to your letter of September 16, 1991, to
our New York Seaport office. That letter concerned the tariff
classification, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of shorts, produced in Thailand
and Malaysia.
FACTS:
The merchandise at issue consists of five samples of men's
and boys' shorts, Style Nos. 350065 (men's), 350048 (men's),
460174 (boys'), 460124 (boys'), and 460148 (boys'). Each sample
has a woven nylon shell, and a knit liner of 65% polyester and
35% cotton. Each sample has a fully elasticized waistband and a
fully functional drawstring. All styles but 350048 have side
seam pockets; the latter has diagonal front pockets, and a rear
pocket, with Velcro -like closures. Style Nos. 350065 and 350048
have the acronym ACG (All Conditions Gear) embroidered on the
left leg. Style No. 460124 has a patch on the left leg with the
words "challenge court" and a flaming tennis ball embroidered on
it. Style Nos. 460174 and 460148 have the name "Jordan" and the
image of a basketball player embroidered on the left leg.
ISSUE:
Whether the instant merchandise is considered swimwear or
active wear under the HTSUSA?
2
LAW AND ANALYSIS:
Heading 6211, HTSUSA, provides for, inter alia, men's and
boys' swimwear. The Explanatory Notes (EN) to the HTSUSA consti-
tute the official interpretation of the tariff at the interna-
tional 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
Explanatory Notes when interpreting the HTSUSA. The EN to
heading 6112, which applies, mutatis mutandis, to heading 6211,
describes swimwear as "(...one-piece or two-piece bathing cos-
tumes, swimming shorts and trunks, whether or not elastic)." The
instant merchandise seems to meet this broad definition.
In Hampco Apparel, Inc. v. United States, Slip Op. 88-12
(January 28, 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 materi-
al, and
(3) the garment is designed and constructed for swimming.
The instant shorts have the first two factors listed above. They
could be used for swimming. We therefore must decide if they are
"designed and constructed for swimming."
In HRL 081447 of March 21, 1988, we stated that, in order to
determine whether a garment is designed and constructed for
swimming, we would first look at the appearance of the garment.
If the appearance is inconclusive, as in the instant shorts,
evidence of 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
way in which a garment is chiefly used will be considered.
The instant shorts are clearly designed and constructed as
active wear shorts for uses other than swimwear, as indicated by
the embroidered sports logos, the attached tags describing some
of the shorts as "fitness" apparel, and the placement of some of
the garments with clearly sports-oriented outerwear in your 1992
sales representatives sizing, policy and procedures manual. They
are therefore classifiable in heading 6203, HTSUSA, as woven
shorts. See also HRL 086436 of May 3, 1990 (volleyball shorts).
3
HOLDING:
As a result of the foregoing, the instant merchandise is
classified as follows:
Styles 350065 and 350048 (Men's)
... under subheading 6203.43.4030, HTSUSA, textile category 647,
as 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.
Styles 460174, 460124 and 460148 (Boys)
... under subheading 6203.43.4040, HTSUSA, textile category 647,
as 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,
boys', other. The applicable rate of duty is 29.7 percent ad
valorem.
The designated textile and apparel category may be subdivid-
ed 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 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 importing the merchandise to determine
the current status of any import restraints or requirements.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division