CLA-2 CO:R:C:T 952322 CMR
TARIFF NO: 6203.43.4030
Ms. Linda Yamashita
NIKE, Inc.
One Bowerman Drive
Beaverton, Oregon 97005-6453
RE: Swimwear v. shorts; 6211, HTSUSA v. 6203, HTSUSA; Hampco
Apparel
Dear Ms. Yamashita:
This ruling is in response to your request of June 29, 1992
regarding the classification of certain men's garments, styles
110210 and 110197. The garments will be manufactured in
Thailand.
FACTS:
Styles 110210 and 110197 are similar in style and
construction. Both garments have outer shells of woven nylon
taffeta fabric and full liners of knit 100 percent polyester
CoolMax fabric. Each garment has a fully elasticized waistband
with a functional drawstring and side vents. Both measure
approximately eleven inches in length from the top of their
waistbands to their hemmed bottoms. Style 110210 has a small
coin or key pocket on the interior right side of the waistband.
Style 110197 has a small coin or key pocket on the back of the
garment on the right side. It is stated in your submission that
the production garments will have a NIKE corporate logo
embroidered on the lower left front hip.
ISSUE:
Are styles 110210 and 110197 classifiable as men's swimwear
of heading 6211, HTSUSA, or are they classifiable as men's shorts
of heading 6203, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the -2-
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988),
the Court of International Trade examined the problem of
distinguishing men's shorts from men's swimwear. In its opinion,
the court set out three criteria for determining whether a
garment is properly considered to be swimwear. The three
criteria are:
(1) whether the garment has a (sic) elasticized waistband
through which a drawstring is threaded;
(2) whether the garment has an inner lining of lightweight
material, namely, nylon tricot; and
(3) whether the garment was designed and constructed for
swimming. 12 CIT 92, 95.
Beyond possessing the listed criteria, the court determined that
the garment at issue therein 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 garments at issue, styles 110210 and 110197, meet the
first criterion, i.e., they each have an elasticized waistband
through which a drawstring is threaded. They also appear to meet
the second criterion, i.e., they each have an inner lining of
lightweight material. However, in finishing its second
criterion, the court stated in regard to the lightweight
material, "namely, nylon tricot". "Namely" is defined in
Webster's II New Riverside University Dictionary (1984) 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 will
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 a material other than nylon
tricot, Customs will consider the material from which the lining -3-
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 criterion, i.e, that the garment be designed
and constructed for swimming.
The garments at issue have inner linings made of CoolMax
knit 100 percent polyester fabric. Customs requested information
on CoolMax fabric and how it is promoted from Du Pont, the
manufacturer of CoolMax. We received large colorful brochures
explaining the beneficial properties of CoolMax and reasons for
using it in various types of athletic clothing. CoolMax is
promoted as a "high-performance fabric that keeps athletes cool
and dry during high-energy sports." It is promoted for its
wickability, breathability and dryability. A one-page flyer on
CoolMax answers the question, "why is this fabric necessary?" as
follows:
The human body cools itself through the evaporation of
perspiration. But if moisture is trapped against the skin
by fabric, evaporation is blocked and the body cannot cool
itself efficiently. That's where COOLMAX comes in.
In answering other questions, the brochure asserts that:
. . . COOLMAX keeps athletes more comfortable and prevents
post-workout chills.
COOLMAX gives an extra edge to golfers, tennis players,
runners, cyclists, aerobic exercisers by helping them
maintain the comfort level needed to turn in their best
performance.
Regarding the types of apparel in which CoolMax is found, the
brochure states:
Golf shirts, jacket linings. Tennis shirts, shorts linings,
shoe linings. Cycling jerseys, cycling shorts. Running
singlets and shoe linings. Athletic top linings. Bodywear.
Socks for all sports. Glove linings. [emphasis added.]
The other brochures emphasize repeatedly CoolMax's ability to
keep an athlete dry and cool. CoolMax is described as an
advanced fabric "formulated to keep an athlete dry and cool in
the heat of competition." (emphasis added.) It helps athletes
"maintain the comfort level they need to achieve peak performance
under the most grueling conditions."
From the statements in the Du Pont brochures, it appears
clear that CoolMax is promoted for its ability to keep an athlete
cool and comfortable while participating in strenuous physical
activity likely to produce perspiration, i.e., sweat. -4-
In response to concerns expressed by Customs during review
of an earlier ruling request by Nike involving a garment with a
CoolMax liner, Christy Miller of Nike stated in a letter of May
8, 1992 that "it is NIKE's belief that the use of Du Pont's high
quality performance fabrics is not meant to be limited to
garments designed for only these four athletic endeavors.
[Referring to Du Pont hangtag which cited running, cycling,
aerobics and tennis.] The letter goes on to cite information
from the back cover of the hangtag:
Helps maintain proper body temperature
Low absorption, for no clamminess
Easy care-machine wash & dry
Cooler, drier comfort
Won't retain odors
Ms. Miller stated: "Our interpretation is that these performance
features enhance the marketability of a garment used for swimming
or activities centered around the water."
While Customs respects the interpretation that NIKE has
taken regarding the above listed performance features, after
reviewing the brochures from Du Pont and taking into
consideration all of the performance features of the CoolMax
fabric, we have a different interpretation with respect to the
types of garments in which CoolMax fabric is most likely to be
used and most likely to enhance marketability. We believe the
key feature, the ability to keep an athlete cool and comfortable,
is not a feature sought in swimwear, but a feature sought in
running shorts, cycling shorts, etc. Staying cool, comfortable
and dry while participating in one's sport is not a need Customs
would expect a swimmer to have.
The advertising/marketing information submitted with your
request appears to be ordering forms for garments including
styles 110197 and 110210 and pictures of the garments. Each
style is described on the order forms and under its picture as a
"print short."
U.S. Additional Rule of Interpretation 1(a) states that:
In the absence of special language or context which
otherwise requires--
a tariff classification controlled by use (other than
actual use) is to be determined in accordance with the
use in the United States at, or immediately prior to,
the date of importation, of goods of that class or kind
to which the imported goods belong, and the controlling
use is the principal use.
-5-
Taking into consideration the design, construction and
marketing of the garments at issue, Customs believes their
intended use, and principal use in the United States, is not as
swimwear, but as garments to be worn during the pursuit of
strenuous physical activities likely to produce sweat, such as
running, playing tennis, biking, etc. Swimming is not an
activity likely to produce sweat since one is immersed in water.
There is no need to wick away perspiration or keep one cool and
dry while engaging in swimming. It is possible that these
garments might be worn for swimming, but Customs believes such a
use would be a fugitive one and would not be the use for which
the garments are primarily purchased.
In regard to use, the court in Hampco, at 96, stated:
The fact that a garment could have a fugitive use or
uses does not take it out of the classification of its
original and primary use. The primary design, construction,
and function of an article will be determinative of
classification, whether or not there is an incidental or
subordinate function. Trans-Atlantic Co., v. United States,
67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100,
C.A.D. 1088, 471 F.2d 1397 (1973). * * * The fact that
swimwear may be used for other incidental purposes unrelated
to swimming, e.g., boating, basketball, volleyball and
bicycling, does not change its character as swimwear. If
the garment was designed and constructed as swimwear, it
shall be so classified.
The court's remarks regarding swimwear susceptible to
fugitive uses may also be said of sports shorts designed
primarily for uses other than swimming, but which could be used
for swimming. Such a use would be a fugitive use.
HOLDING:
The garments at issue, styles 110197 and 110210, are
classifiable as men's shorts of synthetic fibers in subheading
6203.43.4030, HTSUSA, textile category 647, dutiable at 29.7
percent ad valorem.
The designated textile and apparel category may be
subdivided into parts. If so, the 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 renegotiations and
changes, to obtain the most current information available, we
suggest 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 updated weekly and
is available for inspection at your local Customs office. -6-
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 importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division