HQ 082099: 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 082099

                                     May 4, 1988


          CLA-2:CO:R:C:G  082099  PAM

          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 April 5, 1988, 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.  The bottom of these pock-
          ets is made from a mesh material designed to allow water to drain
          during swimming.

          LAW AND ANALYSIS:

              A recent court opinion defined swimwear as a garment which
          has an elasticized waistband with a drawstring, and a liner of
















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          nylon tricot, designed and used for swimming.  Hampco Apparel,
          Inc. v. United States, 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 gar-
          ment 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 appear-
          ance, evidence of the way in which a garment has been designed,
          manufactured, marketed, or advertised, the way in which a manu-
          facturer 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.

          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
          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 other men's wearing apparel, not ornamented,
          of man-made fibers, in item 381.9570, dutiable at the rate of 14
          cents per pound and 27.5 percent ad valorem and subject to tex-
          tile category number 659.

                                            Sincerely,




                                            John Durant
                                            Acting Director
                                            Commercial Rulings Division














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