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HQ 951822


September 10, 1992

CLA-2 CO:R:C:T 951822 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3520; 6203.43.4020

District Director of Customs
Portway Plaza Suite 400
1717 East Loop
Houston, TX 77029

RE: Decision on Application for Further Review of Protest No. 5301-2-100001; boys' jackets and pants

Dear Sir:

This protest was filed against your decision in the liquidation of various entries involving the importation of boys' jackets and pants produced in the Philippines.

FACTS:

The merchandise at issue is designated by the protestant as "boys' warmup jackets and pants." They are made of a woven nylon shell with a lining composed of a blend of 65 percent polyester and 35 percent rayon fabric.

The jackets were liquidated under subheading 6201.93.3520 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, (including padded, sleeveless jackets), other than those of Heading 6203, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, other, boys'. The pants were liquidated under subheading 6203.43.4020, HTSUSA, which provides for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), trousers, bib and brace overalls, breeches and shorts, of synthetic fibers, other, other, other, other, other, trousers and breeches, boys', other.

The protestant contends that the subject jackets are classifiable under subheading 6211.33.0035, HTSUSA, which provides for track suits, ski-suits and swimwear; other garments, other garments, men's or boys', of man-made fibers, track suits, other. The protestant contends that the subject pants are classifiable under subheading 6211.33.0030, HTSUSA, which provides for track suits, ski-suits and swimwear; other garments, men's or boys', of man-made fibers, track suits, trousers.

ISSUE:

Whether the merchandise at issue is classifiable as track suits of Heading 6211, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Heading 6211, HTSUSA, provides for track suits, among other articles. The Harmonized Commodity Description and Coding System, Explanatory Notes, the official interpretation of the HTSUSA at the international level, at page 841, states 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."

The protestant contends that the subject merchandise is classifiable as track suits since it is clearly intended to be purchased, sold, advertised, and used by consumers as track suits. The protestant also states that track suits are not limited for use in running and jogging, but can be used in other activities such as golf; thus, the protestant believes that rulings which state that track suits are limited for use in running and jogging are in error. The protestant also believes that the application of the specificity provision of GRI 3 would result in classifying this merchandise as track suits. Finally, the protestant contends that the application of the use provisions of the U.S Additional Rules of Interpretation make the merchandise at issue classifiable as track suits.

In Headquarters Ruling Letter (HRL) 089321 of August 19, 1992, we stated the following concerning the classification of boys' athletic-style garments:

In ... 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, ... 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.

Although the protestant states that the merchandise at issue is clearly marketed and sold as track suits, no evidence has been submitted to substantiate this claim. No evidence has been furnished that this merchandise is intended to be worn during running or jogging. In regard to the protestant's position that the term "sporting activities" of the applicable Explanatory Notes refers to more than running and jogging, and that track suits can be used in many sports, we note that Customs has ruled in many cases that track suits are garments which are intended to be worn during running or jogging. (See, for example, HRL 950203 of November 21, 1991, HRL 089304 of August 29, 1991, HRL 089321 of August 19, 1991, and HRL 089770 of August 23, 1991). We do not believe that this position is inconsistent with the legal terms of Heading 6211 or with the applicable Explanatory Notes. In HRL 088569 of May 31, 1991, we stated the following concerning this issue:

... We specifically reject the position that the phrase "sporting activities" is a general term referring to all types of sports. ... In order for a set of garments to be commonly and commercially "track suits", those garments must be associated in some manner with running or jogging."

The protestant claims that classification of the subject merchandise other than as track suits is inconsistent with the specificity provision of GRI 3. GRI 3 states, in pertinent part, that when "goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description." The merchandise at issue is not, prima facie, classifiable in Heading 6211 since it does not meet the common and commercial definition of track suit; consequently, GRI 3 is not applicable. Finally, the protestant has argued that classification of the subject merchandise other than as track suits is inconsistent with U.S. Additional Rules of Interpretation 1(a) and 1(b) concerning principal use and intended use. As stated above, there has been no evidence presented that this merchandise is to be used as track suits, associated in some manner with running or jogging.

Accordingly, since there has been no evidence presented that the subject merchandise is intended to be used during running or jogging, it is not classifiable in Heading 6211 as track suits.

HOLDING:

The subject jacket is classified under subheading 6201.93.3520, HTSUSA, which provides for men's or boys' overcoats, carcoats, capes, cloaks, anoraks (including ski- jackets), windbreakers and similar articles, (including padded, sleeveless jackets), other than those of Heading 6203, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, boys'. The rate of duty is 29.5 percent ad valorem, and the textile category is 634.

The subject pants are classified under subheading 6203.43.4020, HTSUSA, which provides for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), trousers, bib and brace overalls, breeches and shorts, of synthetic fibers, other, trousers and breeches, boys', other. The rate of duty is 29.7 percent ad valorem, and the textile category is 647.

The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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