HQ 081292: Tariff classification of certain men's cotton 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 081292

                                    April 5, 1988


          CLA-2:CO:R:C:G  081292  PAM

          CATEGORY:   Classification

          TARIFF NO.:  6211.11.2010


          Mr. Richard Recupero
          Import Manager
          American Import Services
          Airport International Plaza
          Newark, NJ 07114


          RE:           Tariff classification of certain men's cotton
                        swimwear

          Dear Mr. Recupero:

              This is in response to your letter of November 4, 1987, in
          which you request that this office reconsider New York ruling
          824777 of October 19, 1987, which classified certain garments,
          from Hong Kong, as men's shorts.

          ISSUE:

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

          FACTS:

              We have reviewed your submission, the New York ruling of
          October 19, 1987, and the sample garments (Styles S/756, S/775,
          S/779, and 1012) that were submitted along with your request for
          reconsideration.  Although Styles S/757 and S/759 were covered by
          the New York ruling of October 10, 1987, we did not receive
          samples of those styles and they will not be addressed by this
          reconsideration.  (We also received two samples which were not
          covered by the New York ruling of October 10, 1987, i.e., Styles
          774 and 1019.  We did not analyze those garments for purposes of
          this reconsideration.  If you wish a ruling on the classification
          of Styles 774 and 1019, you should submit a ruling request to our
          New York office.)   
















                                         -2-

              The sample garments representing Styles S/756, S/775, S/779,
          and 1012 each consist of a 100 percent woven cotton shell with an
          elastic waistband, a knitted liner which appears to be man-made
          fiber, and two side seam inserted pockets.  A drawstring is
          threaded through the waistband of Style S/756.  A lace is
          threaded through grommets on the waistband of the other three
          styles.  Styles S/775, S/779, and 1012 are ornamented by
          rectangular textile overlays.

          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 de-
          signed 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 or-
          der 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
          fact that a lace is threaded through grommets on the waistband of
          Styles S/775, S/779, and 1012 will not affect their classifica-
          tion.    The appearance 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 every sample.

          CONCLUSION:

              For the reasons stated above, Styles S/756, S/775, S/779, and
          1012 are all classified under Subheading 6211.11.2010 of the
          HTSUSA, which provides for men's swimwear, of cotton, dutiable at
          the rate of 8 percent ad valorem, with textile and apparel cat-
          egory 359.  This classification represents the present position
          of the Customs Service regarding the dutiable status of the mer-
          chandise under the proposed HTSUSA.  If there are changes before
          enactment this advice may not continue to be applicable.












                                         -3-

              The applicable item number from the Tariff Schedules of the
          United States Annotated (TSUSA) for Style S/756 is the provision
          for men's or boys' wearing apparel, not ornamented, of cotton, in
          item 381.6585, dutiable at the rate of 8 percent ad valorem.
          Textile and apparel category 359 applies to merchandise covered
          by this item number.  The applicable item number from the TSUSA
          for Styles S/775, S/779 and 1012 is the provision for men's or
          boys' wearing apparel, ornamented, of cotton, in item 381.0890,
          dutiable at the rate of 14 percent ad valorem.  Textile and ap-
          parel 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
          2cc:  Chief, CIE
          1cc:  Department of Commerce
          1cc:  John Durant
          PAMartin: