Supersession of Pre-Entry Classification Determination (PC) B88525 Pertaining to Men's Woven Nylon Shorts; Not Swimwear, Heading 6203, HTSUS

HQ 961997 June 17, 1999 C.A.2 RR:TC:TE 961997 SG CATEGORY: Classification TARIFF NO.: 6203.43.4030; 6203.43.4040 Ms. Micki Mallory NIKE, Inc. One Bowerman Drive Beaverton, OR 970056453 RE: Supersession of Pre-Entry Classification Determination (PC) B88525 Pertaining to Men's Woven Nylon Shorts; Not Swimwear, Heading 6203, HTSUS Dear Ms. Mallory: This is in response to your request dated May 27, 1998, for reconsideration of PC B88525, concerning the preclassification of three garments, style nos. 152528, 152530, and 450154, which were classified as swimwear. You indicate that on September 10, 1997, HQ 960628 was issued rescinding PC A82442, for style 156988. Style 156988 is a men’s short with a woven nylon shell and a knit full liner of 65% polyester and 35 % cotton jersey knit. The ruling states that the appearance and weight of the liner resembles cotton underpants. Thus the liner was found not to be the type of liner generally used in the manufacture of swimwear as it is neither mesh nor lightweight. The classification was changed from men’s swimwear, heading 6211, HTSUS, to men’s woven shorts, heading 6203, HTSUS. In view of HQ 960628, you have identified the above-referenced three styles which may no longer meet the criteria for classification under swimwear. Samples were provided to this office for examination. FACTS: The sample, Men’s Style Number 152530, is a pair of men’s shorts with a woven 75% polyester and 25% cotton shell and a full liner of 65% polyester and 35% cotton jersey knit. It has a fully elasticized waistband with a functional drawstring. The garment has overlaid stripes at the side seams and at the hemmed leg openings. It has reinforced side seam vents. The garment has an interior waistband label containing the name as well as the swoosh trademark of NIKE. The swoosh NIKE trademark is embroidered on the lower left leg. The sample was produced in Thailand. 2 The sample, Men’s Style Number 152528, is a pair of men’s shorts with 100% woven polyester taffeta shell. This style, in white, has a knit full liner of 65% polyester and 35% cotton jersey knit. No other colors are lined. It has a fully elasticized waistband with a functional drawstring. The garment has overlaid stripes at the hemmed leg openings. It has reinforced side seam vents. The garment has an interior waistband label containing the name as well as the swoosh trademark of NIKE. The swoosh NIKE trademark is embroidered on the lower left leg. The sample was produced in Thailand. The sample, Boy’s Style Number 450154 is a boy’s version of style 152528 with the liner. ISSUE: Whether the submitted samples are properly classified under swimwear, heading 6211, HTSUSA, or 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 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.  3 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 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 the supporting evidence. The garments at issue have an elasticized waistband with a functional drawstring. Thus the submitted samples seem to meet the first of the three criteria enumerated by the court in Hampco. However, in finishing its second criteria, the court stated in regard to the lightweight material, “namely nylon tricot”. Namely is defined in Webster’s II New Riverside University Dictionary (2984) 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 does 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 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 criteria, i.e., that the garment be designed and constructed for swimming. The samples, style 152530, style 152528 in white, and style 450154 in white, have an inner lining made of 65% polyester and 35% cotton jersey knit. The appearance and weight of the liner resembles cotton underpants. Thus the liner is not the type generally used in the manufacture of swimwear as it is neither mesh nor lightweight. In all colors, other than white, the merchandise does not include a liner. These do not meet the second criteria. 4 Several factors lead us to the belief that the submitted shorts are not designed and constructed as swimwear. The sample garments have a satiny finish. The garments also have overlays as well as an embroidered NIKE logo. These features are indicative of a multipurpose garments whose principal use will not be as swimwear. Though the garments meet the first criteria of the Hampco court (i.e., elasticized waistband with drawstring), they do not meet the second as they do not have an inner lining generally used in the manufacture of swimwear. In addition, the NIKE Registration Sheet for the three garments describes the men’s sized garments as “Men’s Football\Soccer Team Spo Field Short”; the boys’ sized garments are described as “Football\Soccer kid’s 8-20 Tra Field Short”. They, therefore, also do not meet the third criterion (i.e., designed and constructed as swimwear). As there is no support for the proposition that the submitted shorts are designed and constructed for swimming, Customs is of the position that the shorts are properly classifiable under heading 6203, HTSUSA, as shorts. HOLDING: The submitted men’s sized shorts are properly classified under subheading 6203.43.4030, HTSUSA, which provides for men's woven shorts of synthetic fibers. The applicable general column one rate of duty is 28.8 percent ad valorem. The boy’s shorts are properly classified under subheading 6203.43.4040, HTSUSA, which provides for boy’s woven shorts of synthetic fibers. The applicable general column one rate of duty is 28.8 percent ad valorem. The textile category for both garments is 647. PC B88525 is hereby superseded by this decision with respect to the garments here in issue. This decision is effective 60 days from the date of this ruling. Sincerely, John Durant, Director Commercial Rulings Division