HQ 081968: Tariff classification of certain men's 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 081968

                                     May 4, 1988


          CLA-2:CO:R:C:G  081968  PAM  827149

          CATEGORY:   Classification

          TARIFF NO.:  6211.11.2010

          Mr. Shimon Hedvat
          Jon Lauren Apparel, Inc.
          1 Eagle Road
          Marlboro, New Jersey 07746

          RE:           Tariff classification of certain men's swimwear

          Dear Mr. Hedvat:

              This is in response to your letter of December 16, 1987, in
          which you request a tariff classification ruling on certain men's
          swimwear from an unspecified country of origin.

          ISSUE:

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

          FACTS:

              One sample garment was submitted for our analysis.  The shell
          of this garment is a blend consisting of 55 percent cotton and 45
          percent polyester material.  It has an elastic waistband through
          which a drawstring is threaded, a knitted liner of man-made
          fiber, and two inserted patch pockets with openings on each side
          seam.  This garment has a rear inserted pocket that is equipped
          with a flap and secured by means of a Velcro closure.  Two front
          seams are located midway between the side seams and middle seam
          of this sample.

              Your letter indicates that the two side pockets and two of
          the front seams will be dispensed with in the final design of
          this garment.  You also state that the rear flap can be secured
          by a larger Velcro strip, if such a design change will effect the
          classification of this garment.  In our opinion, none of the pro-
          posed changes will in any way effect the classification of this
          garment as swimwear.

          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 man-
          ufacturer 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 sample meets all of the requirements
          enunciated in Hampco, and must be classified as swimwear.  The
          appearance of this garment indicates that it is designed and con-
          structed for swimming, and the requisite physical characteristics
          are also present.

          CONCLUSION:

              For the reasons stated above, this garment is classified un-
          der subheading 6211.11.2010 of the HTSUSA, which provide for
          men's swimwear, of cotton, with textile and apparel category 359.
          Assuming column one rates apply, this swimwear is dutiable at 8
          percent ad valorem.  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 Tariff Schedules of the
          United States Annotated for this garment is the provision for
          men's or boys' wearing apparel, not ornamented, of cotton, in
          item 381.6585, dutiable at, assuming column one rates apply,  8
          percent ad valorem.  Textile and apparel category 359 applies to
          merchandise covered by this item number.

                                            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: