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HQ 089321

August 19, 1991

CLA-2 CO:R:C:T 089321 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.23.0010; 6203.23.0020

David M. Murphy, Esquire
Grunfeld, Desiderio. Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Classification of Boys' Athletic-Style Garments--Are They Track Suits?

Dear Mr. Murphy:

This is in reply to your letter of April 25, 1991, on behalf of Baron Group, Ltd., concerning the classification of two garments you describe as jog suits and which will be produced in Hong Kong, Taiwan, China, or Korea. Our ruling on the matter follows.

FACTS:

The submitted samples are two pairs of garments, each pair consisting of a jacket and trousers (styles 909 and 2616). Each sample garment has an woven nylon outer shell pieced together from a number of different colored fabrics and each set of garments is made up of the same colored fabrics. They will be imported in boys' sizes 8-20.

The jackets both have full front zippered openings which extend through the collars, long sleeves with elastized cuffs, slanted opening pockets at the waist, elastized waists, and jersey knit linings. Style 909 has a drawstring through the collar and zipper closures on the pockets. The trousers both have elasticized waistbands with drawstrings, elastized cuffs, partial zippered leg openings, and jersey knit linings.

Although both sets of garments are stated to have a 600mm polyurethane plastics application on the inner surface of their outer shell fabrics, a cursory visual examination shows that they do not have the same plastics application. The outer shell fabric in style 2616 has clearly been coated or covered with a plastics material, while the outer shell fabric of style 909 shows no visual or tactile evidence of a plastics application. However, informal examination of the material indicates that style 909 has been treated to prevent the penetration of water. ISSUE:

The following issues are raised by the instant samples: (1) Is either set of garments classifiable under Heading 6210, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as garments made up of plastics coated or covered fabrics; (2) If not, are one or both sets classifiable under the provisions for track suits; and (3) If not classifiable as track suits, are the garments classifiable as a unit as an ensemble or individually as separates.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). In this instance, GRI 1 governs the classification of the merchandise. GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes.

Note 13, Section XI, HTSUSA, provides that unless "the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale." Accordingly, in the absence of a provision requiring that these sets be classified as such, the garments comprising the sets are classifiable separately.

Note 5 to Chapter 62, HTSUSA, which contains the provisions under which woven garments are classifiable, provides:

Articles which are, prima facie, classifiable both in heading 6210 and in other headings of this chapter, excluding heading 6209, are to be classified in heading 6210.

Heading 6210, HTSUSA, provides for garments made up of fabrics of, among other provisions, Heading 5903, HTSUSA. Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered, or laminated with plastics, other than tire cord fabrics. Note 2 to Chapter 59, HTSUSA, states, in pertinent part, that Heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye * * * for the purpose of this provision, no account should be taken of any resulting change of color;
Accordingly, since the plastics application is visible on the fabric comprising outer shells of the garments of style 2616, those garments are "made up of fabrics of Heading 5903" and are classifiable separately in Heading 6210.

The outer shell fabrics of style 909 are not fabrics of Heading 5903 since the plastics application is not visible to the naked eye. Accordingly, those garments are not classifiable in Heading 6210.

In view of the statements made in the ruling request, we will assume, for the purposes of this ruling, that the outer shell fabric of style 909 has had a plastics material applied to it and that it complies with the requirements of Additional U.S. Note 2 of Chapter 62, HTSUSA. That note provides;

[T]he term "water resistant" means that garments classifiable in those subheadings must have a water resistance (see ASTM designations D 3600-81 and D 3781-79) such that, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates after two minutes when tested in accordance with AATCC Test Method 35-1985. This water resistance must be the result of a rubber or plastics application to the outer shell, lining or inner lining.

The term "ensemble" is stated in Note 3(b), Chapter 62, HTSUSA, to mean:

[A] set of garments (other than suits and articles of heading 6207 or 6208 [underclothing]) composed of several pieces made up in identical fabric, put up for retail sale, and comprising:

- one garment designed to cover the upper part of the body, with the exception of waistcoats, which may also form a second upper garment, and

- one or two different garments, designed to cover the lower part of the body and consisting of trousers ***

All of the components of an ensemble must be of the same fabric construction, style, color and composition; they also must be of corresponding or compatible size. The term "ensemble" does not apply to track suits or ski-suits of heading 6211.

The garments comprising style 909 meet all the requirements for classification as an ensemble, provided that they are not classifiable in Heading 6211.

Heading 6211 provides for "track suits." The Harmonized Commodity Description and Coding System, Explanatory Notes, which are the official interpretation of the HTSUSA at the international level (for the 4 digit headings and the 6 digit subheadings) state that track suits consist of two garments, one for the upper body and a pair of trousers, 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." (at page 841)

In Customs Headquarters Letter Ruling (HRL) 088569, dated May 31, 1991, it was held that only garments which are commonly and commercially known as "track suits" are classifiable as "track suits." These are garments which are usually associated in some manner with running or jogging.

In this instance, although Customs has previously ruled that woven track suits may have linings, HRL 087511, dated January 14, 1991, HRL 087966, dated January 30, 1991, we do not believe that the instant merchandise is classifiable as track suits. We note that due to fashion changes, many all purpose and leisure-type garments are styled to resemble warm-up and track suits. These garments can be seen being worn in grocery stores, on golf courses, etc., and are virtually indistinguishable in appearance from real warm-up and track suits. Since track suits are required to be intended to be worn exclusively or mainly for sporting activities (related to running and jogging), garments which are not intended for those type activities will most likely be worn for leisure and other nonrunning and nonjogging activities.

Accordingly, when sets of garments are stated to be track suits, but appear to Customs to be leisure or multipurpose garments, evidence should be presented to the Customs classifying officer sufficient to establish the fact the merchandise in question is intended for sale as garments to be worn during running or jogging activities. In the absence of such evidence, Customs may classify such garments under provisions other than those which provide for track suits.

In regard to the sample garments, we have no evidence that they are intended for use during running or jogging. Therefore, style 909 is classifiable under the appropriate provisions for ensembles.

HOLDING:

The set of garments labeled style 909 is classifiable under the provisions for boys' ensembles of synthetic fibers, the jacket in subheading 6203.23.0050, HTSUSA, and the trousers in subheading 6203.23.0060, HTSUSA. Both are dutiable at the rate applicable if imported separately. If imported separately, the jacket would be classifiable under the provision for water resistant anoraks, windbreakers, and similar garments, in subheading 6201.93.3000, HTSUSA, and the trousers under the provision for water resistant trousers of synthetic fibers, in subheading 6203.43.3500, HTSUSA. In each instance, the applicable rate of duty is 7.6 percent ad valorem. The designated textile and apparel category applicable to the jacket is 634 and the category applicable to the trousers is 647.

The garments comprising style 2616 are classifiable separately under the provisions for garments made up of fabrics of Heading 5903, the jacket, as an anorak, windbreaker, or similar garment, of man-made fibers, in subheading 6210.40.1020, HTSUSA, and the trousers in subheading 6210.40.1035, HTSUSA. Both are dutiable at the rate of 7.6 percent ad valorem. The designated textile and apparel category applicable to the jacket is 634 and the category applicable to the trousers is 647.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) 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 internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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See also:

• Tariff No.: 6201.93.30 - Men's or boys' anoraks, windbreakers and similar articles, not knitted or crocheted, of manmade fibers, nesoi, water resistant
• Tariff No.: 6203.23.00 - Men's or boys' ensembles, not knitted or crocheted, of synthetic fibers
• Tariff No.: 6203.43.35 - Men's or boys' trousers and breeches, not knitted or crocheted, of synthetic fibers, nesoi, water resistant