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HQ 952322

December 17, 1992

CLA-2 CO:R:C:T 952322 CMR


TARIFF NO: 6203.43.4030

Ms. Linda Yamashita
NIKE, Inc.
One Bowerman Drive
Beaverton, Oregon 97005-6453

RE: Swimwear v. shorts; 6211, HTSUSA v. 6203, HTSUSA; Hampco Apparel

Dear Ms. Yamashita:

This ruling is in response to your request of June 29, 1992 regarding the classification of certain men's garments, styles 110210 and 110197. The garments will be manufactured in Thailand.


Styles 110210 and 110197 are similar in style and construction. Both garments have outer shells of woven nylon taffeta fabric and full liners of knit 100 percent polyester CoolMax fabric. Each garment has a fully elasticized waistband with a functional drawstring and side vents. Both measure approximately eleven inches in length from the top of their waistbands to their hemmed bottoms. Style 110210 has a small coin or key pocket on the interior right side of the waistband. Style 110197 has a small coin or key pocket on the back of the garment on the right side. It is stated in your submission that the production garments will have a NIKE corporate logo embroidered on the lower left front hip.


Are styles 110210 and 110197 classifiable as men's swimwear of heading 6211, HTSUSA, or are they classifiable as men's shorts of heading 6203, HTSUSA?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the -2-
headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade examined the problem of distinguishing men's shorts from men's swimwear. In its opinion, the court set out three criteria for determining whether a garment is properly considered to be swimwear. The three criteria are:

(1) whether the garment has a (sic) elasticized waistband through which a drawstring is threaded;

(2) whether the garment has an inner lining of lightweight material, namely, nylon tricot; and

(3) whether the garment was designed and constructed for swimming. 12 CIT 92, 95.

Beyond possessing the listed criteria, the court determined that the garment at issue therein 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.

The garments at issue, styles 110210 and 110197, meet the first criterion, i.e., they each have an elasticized waistband through which a drawstring is threaded. They also appear to meet the second criterion, i.e., they each have an inner lining of lightweight material. 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 -3-
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 garments at issue have inner linings made of CoolMax knit 100 percent polyester fabric. Customs requested information on CoolMax fabric and how it is promoted from Du Pont, the manufacturer of CoolMax. We received large colorful brochures explaining the beneficial properties of CoolMax and reasons for using it in various types of athletic clothing. CoolMax is promoted as a "high-performance fabric that keeps athletes cool and dry during high-energy sports." It is promoted for its wickability, breathability and dryability. A one-page flyer on CoolMax answers the question, "why is this fabric necessary?" as follows:

The human body cools itself through the evaporation of perspiration. But if moisture is trapped against the skin by fabric, evaporation is blocked and the body cannot cool itself efficiently. That's where COOLMAX comes in.

In answering other questions, the brochure asserts that:

. . . COOLMAX keeps athletes more comfortable and prevents post-workout chills.

COOLMAX gives an extra edge to golfers, tennis players, runners, cyclists, aerobic exercisers by helping them maintain the comfort level needed to turn in their best performance.

Regarding the types of apparel in which CoolMax is found, the brochure states:

Golf shirts, jacket linings. Tennis shirts, shorts linings, shoe linings. Cycling jerseys, cycling shorts. Running singlets and shoe linings. Athletic top linings. Bodywear. Socks for all sports. Glove linings. [emphasis added.]

The other brochures emphasize repeatedly CoolMax's ability to keep an athlete dry and cool. CoolMax is described as an advanced fabric "formulated to keep an athlete dry and cool in the heat of competition." (emphasis added.) It helps athletes "maintain the comfort level they need to achieve peak performance under the most grueling conditions."

From the statements in the Du Pont brochures, it appears clear that CoolMax is promoted for its ability to keep an athlete cool and comfortable while participating in strenuous physical activity likely to produce perspiration, i.e., sweat. -4-

In response to concerns expressed by Customs during review of an earlier ruling request by Nike involving a garment with a CoolMax liner, Christy Miller of Nike stated in a letter of May 8, 1992 that "it is NIKE's belief that the use of Du Pont's high quality performance fabrics is not meant to be limited to garments designed for only these four athletic endeavors. [Referring to Du Pont hangtag which cited running, cycling, aerobics and tennis.] The letter goes on to cite information from the back cover of the hangtag:

Helps maintain proper body temperature
Low absorption, for no clamminess
Easy care-machine wash & dry
Cooler, drier comfort
Won't retain odors

Ms. Miller stated: "Our interpretation is that these performance features enhance the marketability of a garment used for swimming or activities centered around the water."

While Customs respects the interpretation that NIKE has taken regarding the above listed performance features, after reviewing the brochures from Du Pont and taking into consideration all of the performance features of the CoolMax fabric, we have a different interpretation with respect to the types of garments in which CoolMax fabric is most likely to be used and most likely to enhance marketability. We believe the key feature, the ability to keep an athlete cool and comfortable, is not a feature sought in swimwear, but a feature sought in running shorts, cycling shorts, etc. Staying cool, comfortable and dry while participating in one's sport is not a need Customs would expect a swimmer to have.

The advertising/marketing information submitted with your request appears to be ordering forms for garments including styles 110197 and 110210 and pictures of the garments. Each style is described on the order forms and under its picture as a "print short."

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.

Taking into consideration the design, construction and marketing of the garments at issue, Customs believes their intended use, and principal use in the United States, is not as swimwear, but as garments to be worn during the pursuit of strenuous physical activities likely to produce sweat, such as running, playing tennis, biking, etc. Swimming is not an activity likely to produce sweat since one is immersed in water. There is no need to wick away perspiration or keep one cool and dry while engaging in swimming. It is possible that these garments might be worn for swimming, but Customs believes such a use would be a fugitive one and would not be the use for which the garments are primarily purchased.

In regard to use, the court in Hampco, at 96, stated:

The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function. Trans-Atlantic Co., v. United States, 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973). * * * The fact that swimwear may be used for other incidental purposes unrelated to swimming, e.g., boating, basketball, volleyball and bicycling, does not change its character as swimwear. If the garment was designed and constructed as swimwear, it shall be so classified.

The court's remarks regarding swimwear susceptible to fugitive uses may also be said of sports shorts designed primarily for uses other than swimming, but which could be used for swimming. Such a use would be a fugitive use.


The garments at issue, styles 110197 and 110210, are classifiable as men's shorts of synthetic fibers in subheading 6203.43.4030, HTSUSA, textile category 647, dutiable at 29.7 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. -6-

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 importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director
Commercial Rulings Division

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