HQ 082466: Classification of certain men's wearing apparel

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 082466

                                  November 8, 1988


          CLA-2 CO:R:C:G 082466 CMR

          CATEGORY: Classification

          TARIFF NO.: 6211.11.2010

          Robert Stack, Esquire
          Siegel, Mandell & Davidson, P.C.
          One Whitehall Street
          New York, New York  10004

          RE: Classification of certain men's wearing apparel

          Dear Mr. Stack:

              This ruling is in response to your letter of May 24, 1988, on
          behalf of your client, Generation One Apparel, Inc., requesting a
          tariff classification of certain men's wearing apparel from
          China.

          FACTS:

              A sample of the garment at issue was submitted for our
          review.  The sample of men's shorts or swimwear, style N, has an
          outer shell of 100 percent cotton woven material and a full
          support liner of 100 percent nylon knit.  It has an elasticized
          waistband with a functional drawstring, two inserted side-seam
          pockets, a five by five and a half-inch rear patch pocket with a
          partial velcro closure, and two twelve by six-inch front pockets
          with partial velcro closures.  The drawstring has 1/2 to 3/4 inch
          fringe on the ends.

          ISSUE:

              Is the submitted sample classifiable as shorts or swimwear?
          Does the fringe on the drawstring constitute ornamentation for
          tariff purposes?

          HOLDING:

              The Court of International Trade in Hampco Apparel, Inc. v.
          United States, Slip Op. 88-12 (decided January 28, 1988) set
          forth the criteria for determining whether a garment is within
          the purview of swimwear.  The Court directed that we look to the
          following criteria:














                                         -2-


              (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.

          Id. at p. 7.  In concluding that the garment should be classified
          as swimwear, the court stated: "If all of the above are present,
          the garment is swimwear."  Id.

              In HRL 081447 of March 21, 1988, issued subsequent to Hampco,
          it was stated that in the future, when classifying garments of
          boxer-style with outer shells of woven construction,

              Customs will treat as swimwear all garments that are designed
              and constructed for swimming and possess both an elasticized
              waistband through which a drawstring is threaded and a
              lightweight nylon tricot liner.  We will determine whether a
              garment is designed and constructed for swimming from the
              appearance of that garment.  Id. at p. 6.  [Citation to
              Hampco].

              The design and construction of the garment at issue meet the
          criteria set forth by the court in Hampco.  The garment is a
          boxer-style with an outer shell of woven cotton.  It possesses
          both an elasticized waistband through which a drawstring is
          threaded and an inner lining of lightweight material.  From the
          appearance of the garment we conclude that it is indeed designed
          and constructed for swimming.  Classification of this garment as
          swimwear is in accord with Hampco and the position we adopted in
          HRL 081447.

              The fringe on the drawstring is not ornamentation for tariff
          purposes.  While fringe is one of the types of ornamentation
          specifically mentioned in Headnote 3, Schedule 3, Tariff
          Schedules of the United States Annotated (TSUSA), its existence
          on a garment does not automatically denote the garment as orna-
          mented for tariff purposes.  In regard to the instant garment,
          the fringe is a reasonable 1/2 to 3/4 inch extension of the
          drawstring beyond the knot.  We do not believe it rises to the
          level of ornamentation in an accepted trade sense or within the
          common meaning of the term "ornamented."  See HRL 065080 of
          October 9, 1980.















                                         -3-


          HOLDING:

              The submitted sample is classifiable as swimwear under the
          provision for men's or boys' wearing apparel, not ornamented, of
          cotton, not knit, other, in item 381.6585, textile category 359,
          dutiable at the rate of 8 percent ad valorem.

              Under the Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA), the garment is classifiable under subheading
          6211.11.2010, HTSUSA, which provides for men's swimwear, of
          cotton, dutiable at the rate of 8 percent ad valorem, with
          textile and apparel category 359.  This classification decision
          is under the HTSUSA, effective January 1, 1989, subject to
          changes in that legislation before the effective date.


                                          Sincerely,



                                          John Durant, Director
                                          Commercial Rulings Division