CLA-2 CO:R:C:T 951841 jb
Ms. Linda Yamashita
NIKE, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453
RE: Men's woven nylon shorts; not swimwear, heading 6211,
HTSUSA; shorts, heading 6203, HTSUSA
Dear Ms. Yamashita:
This is in response to your letter dated April 29, 1992,
requesting classification, under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), of a pair of men's woven
nylon shorts. A sample was provided to this office for
examination and will be returned under separate cover.
FACTS:
The sample, Style 350125, is a pair of woven nylon taffeta
shorts for men. It has a fully elasticized waistband with a
functional drawstring and a polyester liner. The garment has
four belt loops encircling the waist, and a single pocket with a
full Velcro closure on the right seam. The side seams split
approximately 6 1/2-inches below the waistband to form extended
side vents of approximately 5 1/2-inches. The garment has an
interior waistband label with the ACG (All Conditions Gear)
trademark of NIKE. You state that the production garment version
of this sample will be identical in all respects to the submitted
sample except that the former will include an embroidered NIKE
swoosh logo at the lower left front leg.
ISSUE:
Whether the submitted sample is classifiable under men's
swimwear, heading 6211, HTSUSA, or men's shorts, heading 6203,
HTSUSA?
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 GRI will be applied, in the order of their
appearance.
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 material,
and
(3) the garment is designed and constructed for swimming
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 way in which a garment is chiefly used.
Customs has classified similar merchandise in the past. In
HQ 950602, dated December 3, 1991, the appearance of a pair of
men's shorts was found to be inconclusive for classification
purposes. As such, much consideration was given to factors such
as 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 a
1992 sales manual. It was determined that the shorts were
designed and constructed as active wear shorts for uses other
than swimwear.
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 (See also, HQ 086436, dated May 3,
1990; HQ 086979, dated May 15, 1990; HQ 087476, Dated September
7, 1990; HQ 950207, dated December 3, 1991 and HQ 950652, dated
February 12, 1992).
Several factors lead us to the belief that the submitted
shorts are not designed and constructed as swimwear. Features
such as the nylon taffeta fabric of the garment, the extended
side vents and the ACG trademark of the waistband, are indicative
of a multi-purpose garment whose principal use will not be as
swimwear. Though the shorts meet the first two criteria of the
Hampco court (i.e., elasticized waistband with drawstring and
inner lining), they do not meet the third criterion (i.e.,
designed and constructed as swimwear). An examination of the All
Conditions Gear section of the Spring 1992 Men's Apparel
Catalogue of NIKE shows men participating in a variety of sports
activities such as biking, running and hiking- there are no
illustrations of men swimming.
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 classifiable under heading
6203, HTSUSA
HOLDING:
The submitted shorts, Style 350125, are classified under
subheading 6203.43.4030, HTSUSA, which provides for men's woven
shorts of synthetic fibers. The applicable rate of duty is 29.7
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.
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