Tariff classification of certain men's cotton swimwear

HQ 081362 April 5, 1988 CLA-2:CO:R:C:G 081362 PAM CATEGORY: Classification TARIFF NO.: 6211.11.2010 Mr. Thomas R. Grahm, Esq. Skadden, Arps, Slate, Meagher & Flom 1440 New York Avenue, N.W. Washington, D.C. 20005-2107 RE: Tariff classification of certain men's cotton swimwear Dear Mr. Grahm: This is in response to your letter of November 25, 1987, in which you request a tariff classification ruling on certain men's cotton swimwear from Hong Kong. ISSUE: Are the sample garments classified as swimwear or shorts for tariff purposes. FACTS: Eight samples were submitted for classification (styles HG551, HG552, HG553, HG554, HG555, HG556, HG557, and HG55J1). Each sample garment consists of a 100 percent woven cotton shell with an elastic waistband through which a drawstring is threaded, a knitted nylon liner and two side seam inserted pockets. Six styles have a rear patch pocket attached by two grommets at the bottom and a button top closure. The remaining two styles have no back pocket. 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 -2- 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 appearance of these garments indicates that they are designed and constructed for swimming, and the requisite physical characteris- tics are present in every sample. CONCLUSION: For the reasons stated above, styles HG551, HG552, HG553, HG554, HG555, HG556, HG557, and HG55J1 are all classified under Subheading 6211.11.2010 of the HTSUSA, which provide for men's swimwear, of cotton, dutiable at the rate of 8 percent ad valorem, with textile and apparel category 359. This classifica- tion represents the present position of the Customs Service re- garding 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 (TSUSA) for these garments is the provi- sion for men's or boys' wearing apparel, not ornamented, of cot- ton, in item 381.6585, dutiable at the rate of 8 percent ad valo- rem. 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 2cc: Chief, CIE 1cc: Department of Commerce 1cc: John Durant PAMartin: