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HQ 950501

December 17, 1991

CLA-2 CO:R:C:T 950501 HP


TARIFF NO.: 6211.11.1020

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; advertising; volleyball

Dear Ms. Miller:

This is in reply to your letter of September 17, 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 Thai- land.


The merchandise at issue consists of four styles of boy's shorts, nos. 460165, 460105, 460112 and 460133. Each sample has a woven nylon shell and a knit liner of 65% polyester and 35% cotton. Each sample has a fully elasticized waist with function- al drawstring, and a Nike logo embroidered on the left leg. Styles 460165 and 460105 have front slash patch pockets and one rear patch pocket with a Velcro -like closure. Styles 460112 and 460133 have side seam patch pockets. The styles are listed in the Nike kids 1992 spring catalog.


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

Page 2 of 3


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.

In HRL 950602 of December 3, 1991, we classified similar shorts as active wear shorts for uses other than swimwear, as indicated by the embroidered sports logos (tennis balls, basket- balls, Michael Jordan), the attached hang 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. In the instant matter, the shorts have no specific sports-oriented logos. The hang tags do not aid us in determining marketing, and you have asked us to confirm a classification as swimwear.

It is our opinion the garments are properly classifiable as swimwear. There exists no evidence that the shorts are intended to be used or sold for anything other than swimwear. See HRL 086436 of May 3, 1990 (volleyball shorts). Based upon the Hampco decision, supra, the instant shorts are correctly classified as swimwear.

Page 3 of 3


As a result of the foregoing, the instant merchandise is classified under subheading 6211.11.1020, HTSUSA, textile catego- ry (659), as track suits, ski-suits and swimwear, other garments, swimwear, men's or boys', of man-made fibers, boys'. The appli- cable rate of duty is 29.6 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.


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