HQ 952933: Request for reconsideration of PC 878219; men's woven shorts; swimwear or shorts; CoolMax liner; not swimwear; subheading 6203.43.4030, HTSUSA

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 952933

                          April 5, 1993

CLA-2  CO:R:C:T  952933  jb

CATEGORY:  Classification

TARIFF NO.:  6203.43.4030

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

RE:  Request for reconsideration of PC 878219; men's woven 
     shorts; swimwear or shorts; CoolMax liner; not swimwear;
     subheading 6203.43.4030, HTSUSA

Dear Ms. Yamashita:

     This is in response to your letter dated November 13, 1992,
requesting reconsideration of Pre-Classification ruling (PC)
878219, dated October 2, 1992, classifying a pair of men's woven
shorts.  A sample was provided to this office for examination and
will be returned under separate cover.

FACTS:

     The submitted sample, Style number 110211, was classified by
our office in New Orleans in subheading 6203.43.4030, HTSUSA,
which provides for men's woven shorts of synthetic fibers.

     The article consists of a pair of men's shorts with a woven
shell of 100 percent nylon and a knit CoolMax liner of 100
percent polyester.  It has a fully elasticized enclosed waistband
with a functional drawstring and a coin or key pocket on the
interior right side of the waistband. 

ISSUE:

     Whether the submitted sample is classifiable as shorts in
heading 6203, HTSUSA, or as swimwear in heading 6211, 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 GRI will be applied, in the order of their
appearance.

     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 material,
        and

     3. the garment is designed and constructed for swimming

     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.  (Emphasis added).

     In Headquarters Ruling Letter (HRL) 081477, dated March 21,
1988, we stated that to determine whether a garment is designed
and constructed for swimming, the appearance of the garment will
be examined.  If the appearance is not conclusive, 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 supporting evidence. 


     Of the three criteria enumerated by the court in Hampco, the
submitted sample seems to meet both the first and the second
criteria, i.e., an elasticized waistband through which a
drawstring is threaded and an inner lining of lightweight
material. In HQ 952322, dated December 17, 1992, Customs
classified garments substantially identical to the submitted
sample. That ruling stated, in regard to the second criterion:

     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 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 sample at issue has an inner lining made of CoolMax knit
100 percent polyester fabric. Based on information received by
Customs from the manufacturer of CoolMax, Du Pont, CoolMax is
promoted for its ability to keep athletes cool and comfortable
while participating in strenuous physical activity likely to
produce perspiration.  The multi-purpose features of CoolMax
include:

     1. wickability
     2. breathability
     3. dryability
     4. preventing post-workout chills

     Advertisements promoting the CoolMax liner state that the
CoolMax liner is found in a variety of apparel ranging from golf
shirts, jacket linings, shorts linings and shoe linings, to socks
for all sports, and glove linings.  Nowhere is there mention of
the use of this liner as a desired or necessary feature for
swimwear.





     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.
      
     The appearance of the garment at issue, alone, does not
prove conclusive in making a classification determination. 
However, based on the second prong of our analysis, that is,
supporting evidence, (which in this case consists of the design,
construction and marketing of the garment), it is the belief of
Customs that the intended and principal use of the subject
article, in the United States, is not as swimwear, but as a
garment to be worn during physical activity likely to produce
sweat.  Swimming is not considered such an activity.  There is no
need to wick away perspiration or to keep cool during swimming. 
It is possible that this garment might be worn for swimming, but
Customs believes such use would be a fugitive use and not the use
for which the garment is primarily purchased. 

     The submitted garment was properly classified in PC 878219
as a pair of men's woven shorts in heading 6203, HTSUSA.

HOLDING:

     The garment at issue, referred to as Style number 110211, is
classifiable as men's shorts of synthetic fibers in subheading
6203.43.4030, HTSUSA.  The applicable rate of duty is 29.7
percent ad valorem and the textile category is 647.

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


                            Sincerely,




                            John Durant, Director
                            Commercial Rulings Division