HQ 0082466 - Classification of certain men's wearing apparel - United States International Trade Commision Rulings

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HQ 082466

November 8, 1988

CLA-2 CO:R:C:G 082466 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.11.2010

Robert Stack, Esquire
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, New York 10004

RE: Classification of certain men's wearing apparel

Dear Mr. Stack:

This ruling is in response to your letter of May 24, 1988, on behalf of your client, Generation One Apparel, Inc., requesting a tariff classification of certain men's wearing apparel from China.

FACTS:

A sample of the garment at issue was submitted for our review. The sample of men's shorts or swimwear, style N, has an outer shell of 100 percent cotton woven material and a full support liner of 100 percent nylon knit. It has an elasticized waistband with a functional drawstring, two inserted side-seam pockets, a five by five and a half-inch rear patch pocket with a partial velcro closure, and two twelve by six-inch front pockets with partial velcro closures. The drawstring has 1/2 to 3/4 inch fringe on the ends.

ISSUE:

Is the submitted sample classifiable as shorts or swimwear? Does the fringe on the drawstring constitute ornamentation for tariff purposes?

HOLDING:

The Court of International Trade in Hampco Apparel, Inc. v. United States, Slip Op. 88-12 (decided January 28, 1988) set forth the criteria for determining whether a garment is within the purview of swimwear. The Court directed that we look to the following criteria:

(1) whether the garment has a (sic) elasticized waistband through which a drawstring is threaded;

(2) whether the garment has an inner lining of lightweight material, namely, nylon tricot; and

(3) whether the garment was designed and constructed for swimming.

Id. at p. 7. In concluding that the garment should be classified as swimwear, the court stated: "If all of the above are present, the garment is swimwear." Id.

In HRL 081447 of March 21, 1988, issued subsequent to Hampco, it was stated that in the future, when classifying garments of boxer-style with outer shells of woven construction,

Customs will treat as swimwear all garments that are designed and constructed for swimming and possess both an elasticized waistband through which a drawstring is threaded and a lightweight nylon tricot liner. We will determine whether a garment is designed and constructed for swimming from the appearance of that garment. Id. at p. 6. [Citation to Hampco].

The design and construction of the garment at issue meet the criteria set forth by the court in Hampco. The garment is a boxer-style with an outer shell of woven cotton. It possesses both an elasticized waistband through which a drawstring is threaded and an inner lining of lightweight material. From the appearance of the garment we conclude that it is indeed designed and constructed for swimming. Classification of this garment as swimwear is in accord with Hampco and the position we adopted in HRL 081447.

The fringe on the drawstring is not ornamentation for tariff purposes. While fringe is one of the types of ornamentation specifically mentioned in Headnote 3, Schedule 3, Tariff Schedules of the United States Annotated (TSUSA), its existence on a garment does not automatically denote the garment as orna- mented for tariff purposes. In regard to the instant garment, the fringe is a reasonable 1/2 to 3/4 inch extension of the drawstring beyond the knot. We do not believe it rises to the level of ornamentation in an accepted trade sense or within the common meaning of the term "ornamented." See HRL 065080 of October 9, 1980.

HOLDING:

The submitted sample is classifiable as swimwear under the provision for men's or boys' wearing apparel, not ornamented, of cotton, not knit, other, in item 381.6585, textile category 359, dutiable at the rate of 8 percent ad valorem.

Under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the garment is classifiable under subheading 6211.11.2010, HTSUSA, which provides for men's swimwear, of cotton, dutiable at the rate of 8 percent ad valorem, with textile and apparel category 359. This classification decision is under the HTSUSA, effective January 1, 1989, subject to changes in that legislation before the effective date.

Sincerely,

John Durant, Director
Commercial Rulings Division

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