Request for reconsideration of PC 878219; men's woven shorts; swimwear or shorts; CoolMax liner; not swimwear; subheading 6203.43.4030, HTSUSA

HQ 952933 April 5, 1993 CLA-2 CO:R:C:T 952933 jb CATEGORY: Classification TARIFF NO.: 6203.43.4030 Ms. Linda Yamashita NIKE, Inc. One Bowerman Drive Beaverton, OR 97005-6453 RE: Request for reconsideration of PC 878219; men's woven shorts; swimwear or shorts; CoolMax liner; not swimwear; subheading 6203.43.4030, HTSUSA Dear Ms. Yamashita: This is in response to your letter dated November 13, 1992, requesting reconsideration of Pre-Classification ruling (PC) 878219, dated October 2, 1992, classifying a pair of men's woven shorts. A sample was provided to this office for examination and will be returned under separate cover. FACTS: The submitted sample, Style number 110211, was classified by our office in New Orleans in subheading 6203.43.4030, HTSUSA, which provides for men's woven shorts of synthetic fibers. The article consists of a pair of men's shorts with a woven shell of 100 percent nylon and a knit CoolMax liner of 100 percent polyester. It has a fully elasticized enclosed waistband with a functional drawstring and a coin or key pocket on the interior right side of the waistband. ISSUE: Whether the submitted sample is classifiable as shorts in heading 6203, HTSUSA, or as swimwear in heading 6211, 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 to determine whether a garment is designed and constructed for swimming, the appearance of the garment will be examined. If the appearance is not conclusive, 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. 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 proves inconclusive, an examination of supporting evidence. Of the three criteria enumerated by the court in Hampco, the submitted sample seems to meet both the first and the second criteria, i.e., an elasticized waistband through which a drawstring is threaded and an inner lining of lightweight material. In HQ 952322, dated December 17, 1992, Customs classified garments substantially identical to the submitted sample. That ruling stated, in regard to the second criterion: 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 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 sample at issue has an inner lining made of CoolMax knit 100 percent polyester fabric. Based on information received by Customs from the manufacturer of CoolMax, Du Pont, CoolMax is promoted for its ability to keep athletes cool and comfortable while participating in strenuous physical activity likely to produce perspiration. The multi-purpose features of CoolMax include: 1. wickability 2. breathability 3. dryability 4. preventing post-workout chills Advertisements promoting the CoolMax liner state that the CoolMax liner is found in a variety of apparel ranging from golf shirts, jacket linings, shorts linings and shoe linings, to socks for all sports, and glove linings. Nowhere is there mention of the use of this liner as a desired or necessary feature for swimwear. 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. The appearance of the garment at issue, alone, does not prove conclusive in making a classification determination. However, based on the second prong of our analysis, that is, supporting evidence, (which in this case consists of the design, construction and marketing of the garment), it is the belief of Customs that the intended and principal use of the subject article, in the United States, is not as swimwear, but as a garment to be worn during physical activity likely to produce sweat. Swimming is not considered such an activity. There is no need to wick away perspiration or to keep cool during swimming. It is possible that this garment might be worn for swimming, but Customs believes such use would be a fugitive use and not the use for which the garment is primarily purchased. The submitted garment was properly classified in PC 878219 as a pair of men's woven shorts in heading 6203, HTSUSA. HOLDING: The garment at issue, referred to as Style number 110211, is classifiable as men's shorts of synthetic fibers in subheading 6203.43.4030, HTSUSA. The applicable rate of duty is 29.7 percent ad valorem and 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