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HQ 950681


Januray 6, 1992

CLA-2 CO:R:C:T 950681 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

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; soccer

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, Singapore and Taiwan.

FACTS:

The merchandise at issue consists of four samples of men's shorts, style nos. 15099, 150064, 150065 and 150048. Styles 150099, 150064 and 150065 have woven shells of 100% nylon taffe- ta, 100% nylon mesh liners, and inserted side seam pockets of 100% nylon mesh. Style 150064 has a shell of 100% nylon taffeta and a knit lining of 65% polyester and 35% cotton. It has no pockets. Each style has an elasticized waistband, a functional drawstring, and a Nike corporate logo embroidered on the left leg. The hang tags merely have the Nike logo.

In your letter, each sample is referred to as men's team sales shorts. In your 1992 Spring catalog, style 150064 is listed on page 219 as a soccer short. Style 15099 is displayed in action shots within the magazine Volleyball Monthly. You ask us to confirm previous pre-classifications of similar merchandise as swimwear.

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ISSUE:

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

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.

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. Conversely, you have submitted three volleyball magazines showing style 15099 as used in the sport. Additionally, your catalog describes style 150064 as soccer shorts.

It is our opinion the garments are properly classifiable as swimwear. Even though the shorts are used in volleyball, and by construction and design are virtually indistinguishable from shorts previously classified as volleyball shorts, there exists

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no embroidered volleyball (or soccer) logo, no tag describing the shorts as volleyball (or soccer) apparel, and no statement by you that they are used to play volleyball and beach volleyball. See HRL 086436 of May 3, 1990 (volleyball shorts). You state that the volleyball magazines were submitted to show the shorts being worn for various beach activities. Based upon the Hampco deci- sion, supra, the instant shorts are correctly classified as swimwear.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6211.11.1010, HTSUSA, textile catego- ry (659), as track suits, ski-suits and swimwear, other garments, swimwear, men's or boys', of man-made fibers, men's. 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.

Sincerely,

John Durant, Director

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