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HQ 082046


April 11, 1988

CLA-2:CO:R:C:G 082046 PAM 826804

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.1010

Mr. Joseph F. Fritz
Customs Liaison
Norman Krieger, Inc.
5761 Imperial Highway
Los Angeles, California 90045

RE: Tariff classification of certain men's nylon swimwear

Dear Mr. Fritz:

This is in response to your letter of December 2, 1987, in which you request a classification ruling on certain men's nylon swimwear from Taiwan. Our ruling on this merchandise follows.

ISSUE:

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

FACTS:

Two sample garments were submitted along with your ruling re- quest. Style V14159 is constructed with the following features: a woven shell of 100 percent nylon, a fully elasticized waistband through which a drawstring is threaded, a mesh liner that is 50 percent nylon and 50 percent cotton, two side seam pockets with tape overlay at their openings, one rear patch pocket with a flap closure that is fully secured by a Velcro-like material, one tex- tile overlay on its right side, and one decorative label on the flap of the rear pocket. The overlay and the label both ornament this garment. The label is composed of white needle work on a black background. This label depicts what appears to be the im- porter's trademark, GOTCHA, in lettering that varies in size. Some of the lettering is placed vertically on the label but the letter O and the letter A are both placed horizontally thereon.

The figure of a person carrying a staff and ensign is also de- picted on this label.

Style V14137 is constructed with a 100 percent nylon woven shell, one rear patch pocket with a flap that is fully secured by a Velcro-like material, a fully elasticized waistband through which a drawstring is threaded, and a nylon liner.

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, evi- dence of the way in which a garment has been designed, manufac- tured, 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 fact that style V14159 is equipped with a 50 percent nylon, 50 percent cotton liner will not affect its classification. 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 every sample.

Your proposed inclusion of an inside mesh key pocket with style V14159 would not affect the classification of that garment.

CONCLUSION:

For the reasons stated above, styles V14159 and V14137 are both classified 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 26.9 percent ad valorem, with textile and apparel category 659. This classification represents the present posi- tion of the Customs Service regarding the dutiable status of the merchandise under the proposed HTSUSA. If there are changes be- fore enactment this advice may not continue to be applicable.

The applicable item number from the Tariff Schedules of the United States Annotated (TSUSA) for style V14159 is the provision for men's ornamented woven swimwear of man-made fibers in item 381.3170, dutiable at the rate of 30 percent ad valorem and sub- ject to textile category number 659. The applicable item number from the TSUSA for styles V14137 is the provision for men's wo- ven swimwear, not ornamented, of man-made fibers, in item 381.9570, dutiable at the rate of 14 cents per pound plus 27.5 percent ad valorem, and subject to textile category number 659.

Your samples are being returned under separate cover.

Sincerely,

John Durant

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