HQ 0088108 - Protest No. 3001-90-000133 of January 23, 1990 and request for further review filed by M & L International Company, of Skokie, IL. Ski suit; snow suit; principal; use; actual; coverall; overall; insulated - United States International Trade Commision Rulings

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HQ 088108

February 22, 1991

CLA-2 CO:R:C:T 088108 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0005; 6211.33.0007

Mr. Daniel C. Holland
District Director
U.S. Customs Service
909 First Avenue
Room 2039
Seattle, WA 98174

RE: Protest No. 3001-90-000133 of January 23, 1990 and request for further review filed by M & L International Company, of Skokie, IL. Ski suit; snow suit; principal; use; actual; coverall; overall; insulated

Dear Mr. Holland:

Protest and request for further review in lieu of review by the District Director were timely filed against your liquidation of the following:

Di Impo Name & P Fi Ent Ch Dat Date st rter Address of o sc ry ec e of ri No. Importer r al No. k of Liqu ct t Ye Di Ent idat
C ar gi ry ion o t d e

30 XX- M & L 0 89 XXX X XX/ XX/X
01 XXXX Internationa 1 XXX XX/ X/XX
XXXX l Company XXX XX
X L.P. X
7700 Gross
Point Road
Skokie, IL
60077

FACTS:

The merchandise at issue consists of six styles of boy's overalls, imported from Korea. These garments were classified in Binding Line Review PC 837848 of March 14, 1989, under 6211.33.0005, HTSUSA, as boy's overalls insulated for cold weather protection (now 6211.33.0007). Protestant disagrees with this result, and argues that the garments should be classified under subheading 6211.20.1535, HTSUSA, as boy's ski-suits.

The garments resemble boy's overalls, constructed of a woven nylon shell, with a 450 mm water resistant application of plastics and a polyester air-hole filling. The styles consist of insulated one piece suits designed to cover the upper and lower parts of the body, including the arms. The sleeves are insulated and have elasticized cuffs. The legs of each garment have a sewn-in "gaiter" to stop snow from entering the garment through the bottom. Each suit has a permanently attached hood with drawstring tightening in place of a collar.

ISSUE:

Whether the instant garments are considered ski-suits under the HTSUSA?

LAW AND ANALYSIS:

Subheading 6211.20, HTSUSA, provides for ski-suits. Note 6 to Chapter 62, HTSUSA, states:

For the purposes of heading 6211, "ski- suits" means garments or sets of garments which, by their general appearance and texture, are identifiable as intended to be worn principally for skiing (cross- country or alpine). They consist ... of:

(a) A "ski overall," that is, a one piece garment designed to cover the upper and lower parts of the body; in addition to sleeves and a collar the ski overall may have pockets or footstraps;

Subheading 6211.20, is a use provision. Consequently, the heading under which the subject merchandise will be classified will be controlled by the use in the United States at, or immediately prior to, the date of importation of goods of the class or kind to which the subject merchandise belongs.

The controlling use is the principal use of this type of merchandise -- the use which exceeds any other use in the United States. Additional U.S. Rule of Interpretation 1(a), HTSUSA.

Both Protestant and the Import Specialist have submitted voluminous materials purporting to demonstrate the use toward which this merchandise is put. Advertisements from catalogs such as J.C. Penney, Sears, and Gorsuch Ltd., Vail (a major ski apparel retailer), depict garments essentially identical to the garments at issue as either snow-suits or ski-suits. Indeed, while the Protestant argues that the garments should be classified as ski-suits, the invoices related to this Protest name the apparel "Boy's Overalls" and describe them as "One Pc Snow Suit." It would seem, therefore, that this documentation alone is insufficient to determine the principal use of these garments.

In HRL 082285 DRR of February 15, 1990, we stated that similar merchandise was not classifiable as ski-suits, since

"[t]he construction of the garment does not support a finding that it is intended to be worn principally for skiing." Although no rationale was given to support this conclusion, it was nonetheless correct. Irrespective of advertising, the use of this class or kind of merchandise, by children, which exceeds any other use in the United States, is as recreational wear in Winter (i.e., romping in the snow, sledding, etc.). While it may be true that the particular garments imported by the Protestant are sold as ski-suits, the actual use of certain shipments of merchandise will not dictate a classification controlled by principal use.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6211.33.0005, HTSUSA (now 6211.33.0007), textile category 659, as track suits, ski-suits and swimwear; other garments, other garments, men's or boys', of man-made fibers, coveralls, jumpsuits and similar apparel, other, insulated for cold weather protection. The applicable rate of duty is 17 percent ad valorem. You should DENY this Protest in full. A copy of this Protest Review Decision should be forwarded to the Protestant.

Sincerely,

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