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HQ 953006


July 21, 1993

CLA-2 CO:R:C:T 953006 CAB

CATEGORY: CLASSIFICATION

TARIFF NO. 6202.93.4500; 6204.63.3000

Ms. Lorraine M. Dugan
Associated Merchandising Corporation
1440 Broadway
New York, NY 10018

RE: Classification of women's upper and lower body garments; track suit; piping; oversized pockets; shoulder pads; separates; Additional U.S. Note 2, Chapter 62, HTSUSA; Heading 6202; Heading 6204

Dear Ms. Dugan:

This ruling is in response to your inquiry of October 7, 1992, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted for examination.

FACTS:

The merchandise in question, Style W1264, is a women's matching pants and jacket. The jacket contains a stand-up collar with a zipper closure, shoulder pads, elasticized sleeve cuffs and waistband, and piping is attached to the front, back, collar, and sleeves. The jacket also has two oversized front pockets with an unsecured large opening located at the top of the garment. The pants have elasticized ankle cuffs and waistband, side seam pockets, and a drawcord means of closure.

Style W1264 was the subject of New York Ruling Letter (NYRL) 875520 of August 31, 1992. In that ruling, Customs classified the subject jacket under subheading 6202.93.5010, HTSUSA, which is the provision for women's anoraks, windbreakers and similar articles. The pants at issue were classified under subheading 6204.63.3510, HTSUSA, which is the provision for women's trousers and breeches.

The importer has since altered Style W1264 by adding a coating to the shell of the garments. The importer requests that the garments be classified under the water resistant subheadings of Chapter 62, HTSUSA. The importer has submitted a test report from an independent testing facility confirming that the garments meet the water resistant requirements of Additional U.S. Note 2, Chapter 62, HTSUSA.

ISSUE:

What is the proper tariff classification for the merchandise in question?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, taken in order.

The merchandise in question is potentially classifiable under Heading 6211, HTSUSA, as a track suit, or as water resistant separates in Chapter 62, HTSUSA.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN to Heading 6211, HTSUSA, 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.

As a result of the fashion trend which has developed in recent years to wear garments which are designed and intended for use in sporting activities, as leisurewear garments, Customs has had the formidable task of determining the proper tariff classification for these garments. In prior instances, where Customs had a question as to the principle use of a track suit type garment, Customs required additional evidence to substantiate the claim that the garments would be utilized "exclusively or mainly" for sporting endeavors. Customs is now of the opinion that requesting evidence of use for track suit type garments is not the most effective approach in classifying such garments. Customs reached this conclusion after realizing that identical garments could be classified in different headings based on the quality of evidence an importer submitted to substantiate his tariff classification claim. After further review, it is now our position that as long as Customs can conclude that because of construction and design, such garments fit into a class or kind of goods which are intended to be used exclusively or mainly for athletic activities, the garments will be classified under Heading 6211, HTSUSA, as track suits.

Recently, garments that have the basic construction of track suits described in the EN have been designed with various types of fashionable additions. In this instance, the merchandise in question has been outfitted with shoulder pads, piping, and oversized front pockets. Customs is cognizant of the fact that garments constructed for use during sports have currently become more stylish while still being suitable for wear during sports. Therefore, when faced with the classification of garments that have the general appearance of a track suit in addition to fashionable embellishments, Customs will examine the garments and determine whether the additional embellishments render them unsuitable for use during sporting activities. When determining suitability for use during sporting activities, Customs will assess the comfort and durability of the subject garments.

The subject garments are comprised of features which are traditionally unrelated to use in sports. However, the garments contain the general characteristics of a track suit. These characteristics include the elasticized waistband and cuffs, a drawcord means of closure, shell fabric which is commonly used in the construction of track suits, and the jacket component has a zippered closure that is capable of total torso coverage.

Although the garments in question generally meet the criteria of a track suit, Customs must determine whether the embellishments render the garments unsuitable for use during sporting activities. While the shoulder pads do not contribute to the usefulness of the garments during sporting activities, they do not inhibit the wearer during such activities. Also, Customs has assessed the use of shoulder pads in garments constructed for sporting activities in prior cases, and determined that shoulder pads, by themselves, do not prevent classification of such garments as track suits. See Headquarters Ruling Letter (HRL) 950378, dated April 22, 1993; HRL 087966, dated January 30, 1991.

The jackets contain piping on the exterior surface as well as oversized pockets. The piping in no way hampers the wearer's comfort during rigorous movement. The wearer is still able to participate in running and jogging activities. Customs encountered a similar issue in HRL 950378. The merchandise at issue in HRL 950378 were garments constructed and intended for use during sports. The garments therein had stylish braiding attached to the garments' exterior. Customs concluded that the braiding in no way detracted from the subject garments use during athletic activities and classified them as a track suit under Heading 6211, HTSUSA. Similarly, the oversized pockets do not impede the garments usefulness during sporting activities. As mentioned above, the subject articles are constructed of a woven nylon shell fabric commonly used in the manufacturing of track suits. This type of sturdy fabric is capable of the constant, hard, use commonly associated with running and jogging sporting activities. The added fashion features do not diminish the durability of the garments. Therefore, the embellishments do not render the subject articles unsuitable for use during sporting activities.

In your submission, you assert that the garments in question have been coated enough to render them water resistant for tariff classification purposes. Additional U.S. Note 2, Chapter 62, HTSUSA, provides, in pertinent part:

[T]he term "water resistant" means that garments classifiable in those subheadings must have 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.

When classifying garments such as the articles in question, Customs realizes that the items are potentially classifiable under competing provisions. The garments have the general appearance and characteristics of a track suit, which is specifically provided for under Heading 6211, HTSUSA. However, the garments also meet the water resistant test for separates provided for at the subheading level of Chapter 62, HTSUSA. In prior rulings when faced with classifying similar garments, Customs consistently classified the garments under Heading 6211, HTSUSA. The decision to classify the garments under Heading 6211, HTSUSA, was premised on the fact that the garments were more specifically provided for under Heading 6211, HTSUSA instead of Heading 6202, HTSUSA, which provides for women's jackets and Heading 6204, HTSUSA, which provies for women's trousers. It is important to note that the instant garments have the general appearance and construction of a track suit. However, to be properly classifiable under Heading 6211, HTSUSA, the subject garments must also be suitable for use during sporting activities. In this case, the extensive coating added to the surface of the garments does not allow the garments to breathe and wick away moisture during sporting activities. Therefore, the water resistant garments in question are classifiable under the applicable water resistant subheadings of Chapter 62, HTSUSA.

HOLDING:

Based on the foregoing, the subject jacket is classifiable under subheading 6202.93.4500, HTSUSA, which is the provision for women's or girls' water resistant anoraks (including ski- jackets), windbreakers and similar articles (including padded, sleeveless jackets). The applicable rate of duty is 7.6 percent ad valorem and the textile restraint category is 635.

The pants are classifiable under subheading 6204.63.3000, HTSUSA, which is the provision for women's or girls' water resistant trousers. The applicable rate of duty is 7.6 percent ad valorem and the textile restraint category is 648.

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.

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 importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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