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HQ 950203


November 21, 1991

CLA-2 CO:R:C:T 950203 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.23.0030; 6204.23.0040

Mr. Marc Greenberg
American Shipping Company, Inc.
P.O. Box 1486
Englewood Cliffs, N.J. 07632

RE: Modification of NYRL 863985--Garments Held Not To Be Classifiable As Track Suits

Dear Mr. Greenberg:

This is in reply to your letter of July 22, 1991, addressed to our Regional Commissioner in New York, requesting that Customs reconsider it's decision in New York Ruling Letter (NYRL) 863985, dated June 17, 1991. Our ruling on the matter follows.

FACTS:

NYRL 863985 determined that the subject two-piece garment set, style 42-6210A, was classifiable under provisions for track suits, rather than as ensembles, or according to the individual jacket and pants components comprising the set.

The submitted samples, a matching solid color jacket and pants set, are constructed with a woven polyester outer shell and a knit 65 percent polyester/35 percent cotton lining. The outer shell is stated to have been sprayed on its inner surface with a polyurethane plastics material (which is visible only under magnification). An independent laboratory report has been submitted as evidence that the garments meet the requirements for classification under the provisions for "water resistant" apparel.

The jacket has a pointed collar with a braided drawstring inserted along its edge; long sleeves with elasticized cuffs; a full front zippered opening that extends half way through the collar; a storm flap which covers the front zipper and which is secured in place by six metal snaps; an elasticized waist; and two large horizontal opening patch pockets, each with a single metal snap closure; and a separate vertical opening pocket formed by each patch pocket.

The pants have an elasticized waist with drawstring, and elasticized cuffs with zippered openings extending eight inches upward from the ankles.

Numerous letters from various retail stores (customers of the importer) were submitted, attesting to the fact that they sell leisure wear and not athletic garments. However, we have not considered these letters since none contains any statement about the particular merchandise in question.

ISSUE:

The issue presented is whether the two garments are classifiable under provisions for track suits, or as ensembles, or whether they are separately classifiable.

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). 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. It appears that GRI 1 governs the classification of the subject merchandise.

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.

Chapter 62, HTSUSA, contains the provisions under which woven garments are classifiable. Note 5 to that chapter 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 on the fabric comprising outer shells of the sample garments is not visible to the naked eye, those garments are not "made up of fabrics of Heading 5903" and, therefore, 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 shells of the subject garments comply 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. (italics supplied)

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 addition, Customs has previously ruled in HRL 087511, dated January 14, 1991, and HRL 087966, dated January 30, 1991, that woven track suits may have linings. However, we do not believe that the instant merchandise is classifiable as track suits.

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, in shopping malls, etc., and resemble, in appearance, 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.

In this regard, our attention has focused on the jacket portion of the sample set. It appears to be more of a windbreaker-type garment than the upper portion of a track suit. In our experience, we have never seen a true track suit where the upper garment had a storm flap (with or without metal snap closures), an elasticized waist, and large pockets, of the type present on the instant garment. In view of these features, we believe that although the upper portion of the set could be used for jogging or other similar athletic activities, its primary use will be as an outer jacket. Accordingly, the set is not a track suit and meets all the qualifications for classification as an ensemble.

HOLDING:

The sample set of garments is classifiable under the provisions for women's ensembles of synthetic fibers--the jacket in subheading 6204.23.0030, HTSUSA, and the trousers in subheading 6204.23.0040, 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 6202.93.4500, HTSUSA, and the trousers under the provision for water resistant trousers of synthetic fibers, in subheading 6204.63.3000, 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 635 and the category applicable to the trousers is 648.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, pursuant to Section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), NYRL 863985 is modified to reflect the above classification effective with the date of this letter. If, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you may have with respect to this matter. Any submission you wish to make should be received within 30 days of the date of this letter.

This modification is not retroactive. However, NYRL 863985 will not be valid for importations of the subject merchandise arriving in the United States after the date of this notice. We recognize that pending transactions may be adversely affected (i.e. NYRL 863985 will not be applicable to merchandise previously ordered and arriving in the United States subsequent to this modification). If it can be shown that you relied on NYRL 863985 to your detriment, you may apply to this office for relief. However, you should be aware that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

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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