CLA-2 RR:CT:TE 960437 SG
TARIFF NO: 6103.43.1570
Margaret R. Polito, Esq.
Neville, Peterson & Williams
80 Broad Street
New York, New York 10004
RE: Boy's knit nylon shorts; not swimwear, heading 6112 HTSUSA;
shorts, heading 6103, HTSUSA
Dear Ms. Polito:
This is in response to your letter dated March 25, 1997, on
behalf of your client, Longstreet, a division of Stretch-O-Rama,
Inc., requesting classification, under the Harmonized Tariff
Schedules of the United States Annotated (HTSUSA), of a pair of
boy's nylon shorts. A sample was provided to this office for
examination and will be returned under separate cover.
FACTS:
The sample, Style Number 100, is a pair of boy's shorts with
a knit 100% nylon fabric shell and a mesh liner of nylon tricot.
It has a fully elasticized waistband with a functional
drawstring. The garment has red and white striped piping at the
leg openings and the number 23 appliqued on its lower left leg.
The garment has a relaxed fit and extends midway down the thigh
of the wearer. It does not have a fly.
ISSUE:
Whether the submitted sample was classifiable under boy's
swimwear, heading 6112, HTSUSA, or boy's shorts, heading 6103,
HTSUSA?
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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 GRIs will
be applied, in the order of their appearance.
In Hampco Apparel, Inc. v. United States, 12 CIT 92 (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,
namely nylon tricot, and
(3) the garment is designed and constructed for swimming
Beyond possessing the listed criteria, the court determined
that the garment at issue 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 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.
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 supportive 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
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used, and the way in which a garment is chiefly used. A
classification determination is thus based on a two prong
analysis, that is, first an examination of the physical features
of the garment, and in circumstances where that provides
inconclusive, an examination of the supporting evidence. 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.
Although the sample garment has an elasticized waistband
with a functional drawstring and a nylon tricot liner, several
factors lead us to the belief that the submitted shorts are not
designed and constructed as swimwear. The sample garment has a
satiny finish and red and white piping at the leg openings as
well as an appliqued number 23 on its left lower leg. The sample
does not have the appearance of swimwear. It looks like a pair
of athletic shorts.
The red and white piping on the submitted sample resembles
the colors of the Chicago Bulls team uniform. The number 23 is
worn by Michael Jordan, one of the most famous basketball players
in the world. HQ 950602 classified as shorts a garment with the
name "Jordan" and the image of a basketball player embroidered on
the left leg. The number 23 suggests the same thing when taken
in conjunction with the overall appearance of the shorts and its
piping suggestive of the Chicago Bulls colors. In addition,
these features are indicative of a garment designed to be used as
a sports short rather than as swimwear. Though the sample meets
the first two criteria of the Hampco court (i.e., elasticized
waistband with drawstring, and nylon tricot liner). It does not
meet the third criterion (i.e., designed and constructed as
swimwear).
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 properly classifiable under
heading 6103, HTSUSA, as boys shorts.
HOLDING:
The submitted shorts, Style 100, are properly classified
under subheading 6103.43.1570, HTSUSA, which provides for boy's
knit shorts of synthetic fibers. The applicable general rate of
duty is 29.5 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.
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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