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