HQ 950602: Shorts; swimwear; Hampco; design; construction; tag; draw-string; waistband; catalog; logo

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 950602

                         December 3, 1991


CLA-2 CO:R:C:T  950602  HP

CATEGORY:  Classification

TARIFF NO.:  6203.43.4030; 6203.43.4040

Ms. Christy Miller
Customs Administrator
Nike, Inc.
One Bowerman Drive
Beaverton, OR 97005-6453

RE:   Shorts; swimwear; Hampco; design;  construction; tag; draw-
string; waistband; catalog; logo

Dear Ms. Miller:

     This is in  reply to your  letter of September 16,  1991, to
our  New York Seaport office.   That letter  concerned the tariff
classification,  under  the  Harmonized  Tariff Schedule  of  the
United States Annotated (HTSUSA), of shorts, produced in Thailand
and Malaysia.

FACTS:

     The  merchandise at issue consists  of five samples of men's
and  boys' shorts,  Style  Nos. 350065  (men's), 350048  (men's),
460174 (boys'), 460124 (boys'), and 460148 (boys').   Each sample
has a  woven nylon shell, and  a knit liner of  65% polyester and
35%  cotton.  Each sample has a fully elasticized waistband and a
fully functional  drawstring.   All styles  but 350048  have side
seam pockets; the latter  has diagonal front pockets, and  a rear
pocket, with Velcro -like closures.  Style Nos. 350065 and 350048
have the  acronym ACG  (All Conditions Gear)  embroidered on  the
left leg.  Style No.  460124 has a patch on the left leg with the
words "challenge court" and a  flaming tennis ball embroidered on
it.   Style Nos. 460174 and 460148 have the name "Jordan" and the
image of a basketball player embroidered on the left leg.

ISSUE:

     Whether the  instant merchandise  is considered swimwear  or
active wear under the HTSUSA?

                                2


LAW AND ANALYSIS:

     Heading 6211,  HTSUSA, provides  for, inter alia,  men's and
boys' swimwear.  The Explanatory Notes (EN) to the HTSUSA consti-
tute the  official interpretation of  the tariff at  the interna-
tional level.  While  not legally binding, they do  represent the
considered  views  of classification  experts  of  the Harmonized
System  Committee.   It has  therefore been  the practice  of the
Customs Service to  follow, whenever possible,  the terms of  the
Explanatory  Notes  when interpreting  the  HTSUSA.   The  EN  to
heading 6112,  which applies, mutatis mutandis,  to heading 6211,
describes swimwear  as "(...one-piece  or two-piece  bathing cos-
tumes, swimming shorts and trunks, whether or not elastic)."  The
instant merchandise seems to meet this broad definition.

     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 materi-
          al, and

     (3)  the garment is designed and constructed for swimming.

The instant shorts have the first two factors listed above.  They
could be used for swimming.  We therefore must decide if they are
"designed and constructed for swimming."

     In HRL 081447 of March 21, 1988, we stated that, in order to
determine  whether  a garment  is  designed  and constructed  for
swimming, we would first  look at the appearance of  the garment.
If  the appearance  is inconclusive,  as in  the  instant shorts,
evidence  of  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 will be considered.

     The instant  shorts are clearly designed  and constructed as
active  wear shorts for uses other than swimwear, as indicated by
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 your 1992
sales representatives sizing, policy and procedures manual.  They
are  therefore classifiable  in  heading 6203,  HTSUSA, as  woven
shorts.  See also HRL 086436 of May 3, 1990 (volleyball shorts).

                                3



HOLDING:

     As  a result  of the foregoing,  the instant  merchandise is
classified as follows:

Styles 350065 and 350048 (Men's)

... under  subheading 6203.43.4030, HTSUSA, textile category 647,
as men's  or boys' suits, ensembles,  suit-type jackets, blazers,
trousers, bib and brace overalls, breeches and shorts (other than
swimwear), trousers, bib and brace overalls, breeches and shorts,
of synthetic  fibers, other, other, other,  other, other, shorts,
men's.  The applicable rate of duty is 29.7 percent ad valorem.

Styles 460174, 460124 and 460148 (Boys)

... under subheading 6203.43.4040,  HTSUSA, textile category 647,
as men's  or boys' suits, ensembles,  suit-type jackets, blazers,
trousers, bib and brace overalls, breeches and shorts (other than
swimwear), trousers, bib and brace overalls, breeches and shorts,
of synthetic  fibers, other, other, other,  other, other, shorts,
boys', other.   The applicable  rate of  duty is 29.7  percent ad
valorem.

     The designated textile and apparel category may be subdivid-
ed 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  your 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 your local
Customs office  prior to  importing the merchandise  to determine
the current status of any import restraints or requirements.

     A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported.  If the
documents have been filed  without a copy, this ruling  should be
brought  to the  attention of  the Customs  officer  handling the
transaction.


                            Sincerely,



                      John Durant, Director
                   Commercial Rulings Division