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HQ 088922

July 17, 1991

CLA-2 CO:R:C:T 088922 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.93.5020; 6204.63.3530

Mary A. Murphy
Reebok International Ltd.
100 Technology Center Drive
Stoughton, MA 02072

RE: Toddler track suits; playwear; activewear; sporting activity; classifiable as girls' jacket and trousers heading 6202, 6204, HTSUSA

Dear Ms. Murphy:

This is in reference to your letter of March 1, 1991, requesting classification of toddler's track suits under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue, style no. WF 91107, is a jacket and pants toddler set for girls. Both garments have an outershell of woven nylon and a complete inner lining of 65 percent polyester, 35 percent cotton jersey knit fabric. The jacket has a full front opening with a zipper closure, which has a metal pull in the shape of a sneaker. The puffed, stand-up collar also has a zippered exterior which conceals a woven nylon hood with drawstring. The jacket has an applied "V" design on both the front and back, with the Weebok logo embroidered on the left front side. There are two side vent pockets, and the long sleeved cuffs and the waistband are elasticized. The pants also have an elasticized waistband and ankle cuffs; a Weebok label is inserted at one side seam. You state that this style will be imported in toddler girls' sizes 2T to 4T.

The garment components are matched as to size, marketed as a unit, and color coordinated. The items will be imported from Taiwan and Korea.

In your letter, you state that it is your belief that "a child going out for a walk with his mother or going to any one of many children's aerobic centers, or just going out to play hopscotch, is indeed "mainly" in pursuit of athletic activities

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to the greatest of their ability at this age level." In addition, you include several pictures of a child playing in a "gymboree" wearing a garment similar to the one at issue but for the color.

ISSUE:

Whether this garment is classifiable as children's playwear or sportswear.

LAW AND ANALYSIS:

Classification of merchandise under the tariff is in accordance with the General Rules of Interpretation, (GRI) taken in order. GRI 1 provides that classification will be determined by the terms of the heading, and any relevant section or chapter notes.

Heading 6211, HTSUSA, provides for track suits, ski-suits and swimwear. The Explanatory Notes (EN) at 62.11, apply, mutatis mutandis, the provisions of EN 61.12 to the articles of this heading. The Explanatory Notes constitute the official interpretation of the tariff at the international level, and state, in relevant part, that

(A) Track suits, i.e., knitted articles consisting of two pieces, not lined but sometimes with a raised inner surface (nap) which, because of their general appearance and the nature of the fabric, are clearly meant to be worn exclusively or mainly in the pursuit of sporting activities.

The full inner lining of both pieces of this garment is made of 65 percent polyester and 35 percent cotton knit material. In HQ 087511, a track suit lined in substantial part (torso and upper trouser area) with 65 percent polyester/35 percent cotton lightweight jersey fabric was determined to perform the same function as an unlined track suit with a raised inner nap capable of breathing and wicking away perspiration. Thus, the presence of this type of lining in the garment at issue does not preclude classification as a track suit.

Next we consider whether the present garment, due to its general appearance and the nature of the fabric, is clearly meant to be worn exclusively or mainly in the pursuit of sporting activities. Inherent in this consideration is the question of what constitutes a sporting activity, and whether children of toddler age are capable of such activity.

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Subheading 6211.43 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 individual use in the United States. See, Additional U.S. Rule of Interpretation 1(a), HTSUSA.

In a report submitted by the National Import Specialist (NIS) with expertise in this commodity line, the term "sporting activity," is interpreted to exclude the play-type activities engaged in by physically active youngsters, aged 2 to 4, because they are not participating in a specific athletic activity having a particular form and substance.

We concur in this interpretation and conclude that there has been no evidence to support a finding that these garments are primarily worn in pursuit of sporting activities, thereby requiring classification as children's playwear or activewear. The photographs submitted with your request do not constitute evidence of primary use. In HRL 088108 (February 22, 1991), we ruled that similar merchandise, children's snow suits, were not classifiable as ski suits because primary use of such garments, by children, is as recreational wear in winter. We also stated that in such cases, actual use will not dictate a classification controlled by principal use.

Heading 6202, which provides for girls' jackets, and heading 6204, which provides for girls' trousers, are therefore applicable to this merchandise for purposes of classification.

HOLDING:

For the reasons stated above, the jacket portion of this merchandise is classified under subheading 6202.93.5020, HTSUSA, which provides for women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): of man-made fibers, other, other, other, girls', textile category 635, dutiable at the rate of 29.5 percent ad valorem.

The trousers are classified under subheading 6204.63.3530, HTSUSA, which provides for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts:

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of synthetic fibers: other: other: other: other: other, trousers and breeches: girls', other, textile category 648, and dutiable at the rate of 30.4 percent ad valorem.

Due to the changeable nature of the statistical annotation and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director
Commercial Rulings Division

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