HQ 955009: Classification of men's woven shorts; swimwear v. shorts; Dri-F.I.T. lining; Coolmax; Hampco; swimwear describes garments used for swimming, not all articles related to water sports.

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 955009

                        November 29, 1993

CLA-2 CO:R:C:T 955009 ch

CATEGORY:  Classification

TARIFF NO.:  6203.43.4030

Linda Yamashita
Customs Administrator
One Bowerman Drive
Beaverton, Oregon  97005-6453

Re:  Classification of men's woven shorts; swimwear v.
     shorts; Dri-F.I.T. lining; Coolmax; Hampco; swimwear
     describes garments used for swimming, not all articles
     related to water sports.

Dear Ms. Yamashita:

     This is in response to your letter of August 27, 1993,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) for a pair of
men's woven shorts.  A sample was provided to this office for
examination.

FACTS:

     The submitted sample, style number 155228, has a woven shell
of 100 percent nylon taffeta and a Dri-F.I.T. knit liner of 100
percent polyester.  It has a fully elasticized waistband with a
functional drawstring, side seam inserted mesh pockets and a rear
pocket with a partial Velcro closure.  The garment features
hemmed legs and a woven patch on the lower left front leg
featuring the Nike corporate logo.  Descriptive literature from
Nike's spring catalogue refers to the article as the Hood River
Short.

     The properties of the Dri-F.I.T. fabric are described as
follows:

     Dri-F.I.T. fabric wicks moisture away from your skin to
     keep you dry and cool or dry and warm, depending on
     your needs.  This benefit comes in a variety of unique
     fabric combinations that promote moisture
     transportation, thermal efficiency, lighter weight, and
     the stretch comfort of Lycra spandex.  Whatever the
     need and the condition, Dri-F.I.T. fabrics offer a
     solution for the outdoor sports and fitness enthusiast.

     The spring catalogue contains a page devoted to what is
referred to as "swimwear."  Several articles are grouped together
in this section, including the Hood River Short.  Pictured below
the instant merchandise are the Swoosh Mesh Cap and the Mesh
Signature Sport Duffle.  The former is a baseball style cap,
while the latter appears to be a travel or tote bag.  A picture
of the Water Warm-Up Top appears above the Hood River Short. 
This item is described separately as follows:

     Water Warm-Up Top

     Content:  7.0 oz., 60% cotton/40% polyester French
     terry.
     Profile:  A French terry hooded full-zip jacket with
     front pouch pockets, drawcords at hood and bottom hem,
     striped knit rib at cuffs, twill tape striping on hood
     and a NIKE SWIM patch at left chest, and an embroidered
     NIKE corporate logo on the lower-right sleeve.

ISSUE:

     Whether the Hood River Short is classifiable under
subheading 6211.11.1010, HTSUSA, which provides for men's
swimwear of man-made fibers; or subheading 6203.43.4030, which
provides for men's woven shorts of synthetic fibers?

LAW AND ANALYSIS:

     The Guidelines for the Reporting of Imported Products in
Various Textile and Apparel Categories, CIE 13/88, November 23,
1988, at page 21, state that:

     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.

Thus, athletic shorts and swim trunks are classified separately,
although they may closely resemble one another.  The Guidelines
indicate that swim trunks usually possess a drawstring and a
lightweight liner.  In addition, a pair of swim trunks must be
recognizable as such.

     In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988),
the Court found that:

     [I]n determining whether a garment falls within the
     purview of swimwear and not shorts, we have to look at
     the following features:

     1.   whether the garment has an 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.  (Emphasis added).

The first criterion is satisfied in this instance, as the Hood
River Short possesses an elasticized waistband through which a
drawstring is threaded.

     In Headquarters Ruling Letter (HRL) 952322, dated December
17, 1992, we observed:

     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"...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.  (Emphasis
     added).

As this passage indicates, the second and third criteria are
related.  Shorts which are not of a lightweight material such as
nylon tricot are not designed and constructed for swimming.

     The shorts which were the subject of HRL 952322 possessed a
liner of a knit 100 percent polyester CoolMax fabric.  The
manufacturer of the liner promoted CoolMax as a fabric that would
keep an athlete dry, cool and comfortable while participating in
strenuous physical activity likely to cause perspiration.  We
pointed out that these properties were not desired in garments
used for swimming.  Rather, we concluded that the merchandise was
designed for use as athletic shorts, suitable for use in
activities such as running or cycling.  Accordingly, these items
were classified not as swimwear, but as men's shorts.

     Similarly, the Hood River Short features a lining that
"wicks moisture away from your skin to keep you dry and cool or
dry and warm, depending on your needs."  The fabric is said to
"promote moisture transportation" and "thermal efficiency."  It
has been designed with the "outdoor sports and fitness
enthusiast" in mind.  Apparently, the Dri-F.I.T. lining has been
constructed, designed and marketed to keep moisture away from the
skin and to keep one warm or cool as the situation requires. 
These characteristics are not normally associated with a pair of
swimming trunks.  For these reasons, we conclude that the instant
garment has not been designed and constructed for swimming. 
Hence, it shall be classified as a pair of men's shorts.

     Although this matter has been resolved on the basis of the
design of the garment, we also wish to comment on the manner in
which it has been marketed.  As noted above, the shorts have been
grouped with a cap, a travel bag and a zippered jacket under the
caption "swimwear."  We infer from this fact that you consider
these articles to be "swimwear" on the basis that they bear some
relation to water sports or water recreation.

     The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System constitute the official
interpretation of the nomenclature at the international 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 EN when interpreting the
HTSUSA.

     Subheading 6211.11, HTSUSA, encompasses men's woven
swimwear.  The EN to heading 6211, at page 856, state that the
provisions of the EN to heading 6112 concerning swimwear apply to
heading 6211.  The EN to heading 6112 provide, at page 842, that
the heading includes:

     Swimwear (knitted or crocheted one-piece or two-piece
     bathing costumes, swimming shorts and trunks, whether
     or not elastic).  (Emphasis added).

Moreover, the third criterion set forth by the Court in Hampco
refers to garments designed and constructed for swimming.  Taken
together, the EN to heading 6112 and the Hampco decision suggest
that the "swimwear" designation is reserved for garments to be
worn when bathing or swimming.

     Assuming that the articles marketed together as part of your
"swimwear" collection bear some relation to water sports, they
will not be classified as "swimwear" for tariff purposes.  The
Sport Duffle is not a garment and cannot be worn when swimming or
bathing.  Furthermore, the Water Warm-Up Top is a hooded zippered
jacket that appears to be designed to keep one dry and warm.  It
is highly unlikely that it will be used underwater.  Finally, the
Swoosh Mesh Cap is constructed so as to protect the head from the
elements, and not as a bathing cap.  We will not interpret the
swimwear provisions of the tariff schedule so expansively that
they include articles that are merely related to water sports. 
Therefore, the marketing information in our possession does not
support the classification of the Hood River Short as swimwear.

HOLDING:

     The subject merchandise is classifiable under subheading
6203.43.4030, HTSUSA, which provides for 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.  The
textile quota 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 the subject of 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