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HQ 953228


July 22, 1993

CLA-2 CO:R:C:T 953228 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3510; 6203.43.4010

District Director
U.S. Customs Service
110 S. Fourth Street
Room 137
Minneapolis, MN 55401

RE: Request for Further Review of Protest No. 3501-92-100231, Dated August 17, 1992, concerning the Classification of a man's upper and lower body garment; Heading 6211; Heading 6201; Heading 62030; Heading 9902

Dear Sir:

This ruling is in response to the protest that was filed by Southern Trading Company on August 17, 1992, against your decision concerning the classification of a man's upper and lower body garment. A sample was submitted for examination.

FACTS:

The merchandise in question consist of a matching jacket and pants. The jacket contains a 65% polyester/35% cotton mesh lining in the torso area and a 100% nylon lining in the sleeves; elasticized waistband; elasticized cuffs; a full front opening with a metal zipper that extends to the top of the collar; two side inserted pockets; and a patch on the collar that contains the word "Rollerblade". The pants are comprised of a 100% nylon lining; elasticized ankles; and a full zipper means of closure located on each pant leg. Both the pants and the jacket have an outer shell of 100 percent nylon material and an additional layer of nylon textile material at the knee and elbow area of the garment. The protestant describes this additional layer of fabric as "heavy-duty luggage-type fabric", specially designed for clothing worn for persons participating during in-line skating. The protestant claims that this "heavy-duty" material is used to protect the wearer against injury from falls and road burns.

This protest concerns entries of the instant merchandise entered under subheadings 6211.33.0035 and 6211.33.0030, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and liquidated under subheadings 6201.93.3510 and 6203.43.4010, HTSUSA. The protestant requests reliquidation under Heading 9902, HTSUSA, or in the alternative, under Heading 6211, HTSUSA.

ISSUE:

Whether the merchandise in question is classifiable under Heading 6211, HTSUSA, as a track suit, Heading 9902, HTSUSA, as sports clothing, or as separates under Chapter 62, HTSUSA?

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 competing provisions. The possibilities include classification as a track suit under Heading 6211, HTSUSA, classification as sports clothing under Heading 9902, HTSUSA, or classification as separates under Chapter 62, HTSUSA.

The protestant states that the subject merchandise is classifiable under subheading 9902.62.01, HTSUSA, as sports clothing, however provided for in Chapters 61 and 62, HTSUSA. U.S. Additional Note 12(a) to Chapter 99, HTSUSA, states, in relevant part:

(1) The term "sports clothing" refers to:

(B) other articles of sports wearing apparel which because of their padding, fabric, construction, or other special features are specially designed to protect against injury (e.g., from blows, falls, road burns or fire).

The protestant contends that the instant garments are specifically designed for the sport of in-line skating and to protect the wearer against injury from falls and roadburns. The protestant refers to the heavy duty nylon canvas material located at the elbows and knees of the jacket and pants as evidence of the specially devised protective features.

After examining both the garments, Customs believes that the canvas material is not substantial enough to protect the wearer against the aforementioned injuries. Customs contacted numerous retail sports stores to determine exactly what types of clothing and accessories are used for in-line skating. In every instance, Customs was informed that if an in-line skater desired to protect him or herself from injury, they would generally wear separate knee and elbow pads, and not merely lined upper and lower body garments which contained canvas elbow and knee inserts. The cited elbow and knee pads usually contain several layers of padding, foam material, and an exterior layer of hard plastic. When comparing this type of protective gear with a single layer of nylon canvas material, it is apparent that the canvas material is not sufficient for its stated purpose. Therefore, subheading 9902.62.01, HTSUSA, is not applicable to the subject garments.

The protestant further maintains that if the garments at issue are not classifiable under subheading 9902.62.01, HTSUSA, in the alternative, they are properly classifiable under Heading 6211, HTSUSA. Heading 6211, HTSUSA, provides for, inter alia, track suits. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the nomenclature 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.

In order to be properly classifiable under Heading 6211, HTSUSA, as a track suit, Customs must conclude that based on 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. There are various characteristics present in the subject garments that would indicate that they are track suits for tariff classification purposes. These attributes include the elasticized waistband and cuffs, the shell fabric which is commonly used in the construction of track suits, the full-frontal opening in the jacket, and the loose-fit which allows the wearer to have more freedom and mobility during sporting activities.

In Headquarters Ruling Letter 087511, dated January 14, 1991, Customs classified a similar breathable lined woven jacket and pants under Heading 6211, HTSUSA, as a track suit. Prior to the issuance of HRL 087511, lined track suits were excluded from Heading 6211, HTSUSA, on the basis of the EN to Heading 6112, HTSUSA, (which applies, mutatis mutandis, to Heading 6211, HTSUSA). In HRL 087511, Customs stated:

In applying the "knitted" EN to the "woven" heading, we failed to take into account several physical differences between the two construction types. A knit construction in the outer shell of track suits is desirable because of the fabric's ability to both breathe and wick way perspiration. An inner liner of any material would not augment these characteristics significantly, and would likely create an atmosphere of undesirable warmth for the athletic wearer.

[I]t is our opinion that "necessary changes in points of detail," from knitted track suits to woven, allows the presence of a liner with the ability to both breathe and to wick away perspiration. Track suits with a woven outer shell and an inner lining capable of imparting the characteristics enumerated above are therefore classifiable in Heading 6211, HTSUSA, as track suits.

In your submission, you maintain that Customs should again broaden the scope of the EN and allow for the use of nonbreathable nylon linings in the construction of track suits. You state that "there are a great number of reasons to add linings to woven track suits and therefore, the inclusion of linings should not have any bearing toward classification." Customs agrees with this statement, in part. Granted, there are numerous reasons to outfit a garment with a lining. However, when examining a garment for tariff classification purposes, Customs must examine and assess the entire garment, not merely a portion of a garment. To not consider the entire garment including the lining, when determining the proper tariff category would bring about inaccurate results. Customs is cognizant of the fact that there are many reasons for the inclusion of a lining in a garment; but for use in track suits, we decided after much consideration that "breathability and wickability" were minimum prerequisites for classification under Heading 6211, HTSUSA. Any additional utilitarian purposes for a lining will be taken into consideration, so long as the lining is capable of breathing and wicking away moisture. As nylon is a nonbreathable fabric that is incapable of wicking away moisture, and the lining in the pants and the jacket sleeves is solely comprised of this synthetic material, these garments are unsuitable for use during sporting activities.

Since the two aforementioned headings are not applicable to the garments in question, the only alternative for tariff classification purposes, is classification as separates under Chapter 62, HTSUSA.

HOLDING:

Based on the foregoing, the jacket in question is classifiable under subheading 6201.93.3510, HTSUSA, which is the provision for men's or boys' windbreakers and similar articles. The applicable rate of duty is 29.5 percent ad valorem and the textile restraint category is 634. The pants at issue are classifiable under subheading 6203.43.4010, HTSUSA, which is the provision for men's or boys' trousers. The applicable rate of duty is 29.7 percent ad valorem and the textile restraint 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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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