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HQ 081220


April 19, 1988

CLA-2:CO:R:C:G 081220 PAM 825290

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 September 14, 1987, 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. An embroidered arena logo measuring 1 inch in height and 1-3/8th inches in length appears on the front of the left leg. This logo consists of the word arena in lower case lettering above a wedge design that is formed by three diamond shaped figures. The thread from which this logo is constructed is white, while the fabric of the shorts is red.

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 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 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 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.

We must also decide whether under the Tariff Schedules of the United States Annotated (TSUSA) the sample is ornamented as a result of the arena logo that appears on the left leg. We ad- dressed the issue of ornamentation with regard to a pair of arena shorts nearly identical to the sample now under consideration in Internal Advice 24/87 of July 16, 1987 (080287). Our July 16, 1987, ruling held that an identical arena logo ornamented the garment on which it appeared. (Copy enclosed.) In reaching this conclusion, our July 16th ruling cited Nissho-Iwai American Corp. v. U.S., Slip Op. 87-38 (Ct. Int'l Trade, decided March 31, 1987), for the proposition that trademarks do not possess a functional aspect that is primary to their ornamental nature. We consider our prior holding on this issue to be correct and adopt both the conclusion and rationale from the July 16, 1987, ruling, insofar as that opinion relates to the issue of ornamentation.

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 men's ornamented woven swimwear of man-made fi- bers in item 381.3170, dutiable at the rate of 30 percent ad valorem and subject to textile category number 659.

Sincerely,

John Durant

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