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HQ 089421


September 24, 1991

CLA-2 CO:R:C:T 089421 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0007

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

RE: Further Review of Protest 3001-91-100231. Ski suit; snow suit; principal; use; actual; coverall; overall; insulated; children

Dear Mr. Holland:

This is in reply to your Memorandum forwarding documentation for a further review of Protest Number 3001-91-100231, dated 3- 3-91. This Protest was submitted by Gladish & Associates, on behalf of xxxxxxxxxxxx. Please reference your file PRO-4:SE:C:E LB.

FACTS:

The merchandise at issue consists of two styles of boys' coveralls, styles RW-T2PC and RW-T3PC. The shells and lining are nylon. The fill is polyester. Each garment has a woven collar, long sleeves, a front zipper opening, and a fully elasticized waistband and sleeve cuffs. Style RW-T2PC has a detachable hood. Both styles are imported in boys' sizes S, M and L. The importer contends these garments are water-resistant ski-suits.

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 single use in the United States. Additional U.S. Rule of Interpretation 1(a), HTSUSA.

In HRL 088108 of February 22, 1991, we classified substantially similar merchandise, stating:

Both Protestant and the Import
Specialist have submitted voluminous materials purporting to demonstrate the use toward which this merchandise is put. Adver- tisements 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. * * * 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 6211.33.0007, HTSUSA, 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. Since the rate of duty under the classification listed above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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