HQ 081220: Tariff classification of certain men's polyester swimwear

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 081220

                                   April 19, 1988


          CLA-2:CO:R:C:G  081220  PAM  825290

          CATEGORY:   Classification

          TARIFF NO.:  6211.11.1010


          Ms. Susan Law
          Production Manager
          Arena
          5181 Argosy Drive
          Post Office Box 2466
          Huntington Beach, CA 92649


          RE:           Tariff classification of certain men's polyester
                        swimwear

          Dear Ms. Law:

              This is in response to your letter of September 14, 1987, in
          which you request a classification ruling on certain men's
          swimwear from Taiwan.  Our ruling on this merchandise follows.

          ISSUE:

              Is the sample garment classified as swimwear or shorts for
          tariff purposes?

          FACTS:

              This sample consists of a woven shell that is 65 percent
          polyester and 35 percent cotton, a fully elasticized waistband
          through which a drawstring is threaded, a liner of man-made mate-
          rial and an inside coin/key pocket made from the same material as
          the liner.  Two interior patch pockets with openings on each side
          seam adorn the front of this garment.  An embroidered arena logo
          measuring 1 inch in height and 1-3/8th inches in length appears
          on the front of the left leg.  This logo consists of the word
          arena in lower case lettering above a wedge design that is formed
          by three diamond shaped figures.  The thread from which this logo
          is constructed is white, while the fabric of the shorts is red.  

















                                         -2-

          LAW AND ANALYSIS:

              A recent court opinion defined swimwear as a garment which
          has an elasticized waistband with a drawstring, and a liner of
          nylon tricot, designed and used for swimming.  Hampco Apparel,
          Inc. v. U.S., Slip Op. 88-12 (Ct. Int'l Trade, decided January
          28, 1988).  In Headquarters Ruling Letter 081447 of March 21,
          1988, we determined that garments similar to those discussed in
          Hampco, which are designed and constructed for swimming and
          possess both an elasticized waistband through which a drawstring
          is threaded and a lightweight nylon tricot liner, will be treated
          as swimwear for tariff purposes.  We decide whether or not a
          garment is designed and constructed for swimming from the
          appearance of that garment.  If Customs is unable to determine
          whether a garment is designed and constructed for swimming from
          its appearance, evidence of the way in which a garment has been
          designed, manufactured, marketed, or advertised, the way in which
          a manufacturer or importer intended a garment to be used, and the
          way in which a garment is chiefly used will be considered in
          order to facilitate our inquiry into the primary function of that
          garment.

              In this instance, the samples meet all of the requirements
          enunciated in Hampco and must be classified as swimwear.  The ap-
          pearance of these garments indicates that they are designed and
          constructed for swimming.  In our opinion, the requisite physical
          characteristics, enunciated by the Court of International Trade
          in Hampco, are present in this sample.

              We must also decide whether under the Tariff Schedules of the
          United States Annotated (TSUSA) the sample is ornamented as a
          result of the arena logo that appears on the left leg.  We ad-
          dressed the issue of ornamentation with regard to a pair of arena
          shorts nearly identical to the sample now under consideration in
          Internal Advice 24/87 of July 16, 1987 (080287).  Our July 16,
          1987, ruling held that an identical arena logo ornamented the
          garment on which it appeared.  (Copy enclosed.)  In reaching this
          conclusion, our July 16th ruling cited Nissho-Iwai American Corp.
          v. U.S., Slip Op. 87-38 (Ct. Int'l Trade, decided March 31,
          1987), for the proposition that trademarks do not possess a
          functional aspect that is primary to their ornamental nature.  We
          consider our prior holding on this issue to be correct and adopt
          both the conclusion and rationale from the July 16, 1987, ruling,
          insofar as that opinion relates to the issue of ornamentation.

          CONCLUSION:

              For the reasons stated above, the sample garment is classi-
          fied under Subheading 6211.11.1010 of the Harmonized Tariff
          Schedule of the United States Annotated (HTSUSA), which provides












                                         -3-

          for men's woven swimwear of man-made fibers, dutiable at the rate
          of 29.6 percent ad valorem, with textile and apparel category
          659.  This classification represents the present position of the
          Customs Service regarding the dutiable status of the merchandise
          under the proposed HTSUSA.  If there are changes before enactment
          this advice may not continue to be applicable.

              The applicable item number from the TSUSA for this sample is
          the provision for men's ornamented woven swimwear of man-made fi-
          bers in item 381.3170, dutiable at the rate of 30 percent ad
          valorem and subject to textile category number 659.

                                            Sincerely,




                                            John Durant
                                            Acting Director
                                            Commercial Rulings Division

          Enclosure










































          6cc: Area Director, New York Seaport
          1cc:  Area Director, Newark
          1cc:  Department of Commerce
          1cc:  John Durant
          PAMartin: