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HQ 953628


July 21, 1993

CLA-2 CO:R:C:T 953628 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.93.4500; 6204.63.3000

Regional Commissioner
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center
Room 762
New York, NY 10048-0945

RE: Request for Further Review of Protest No. 1001-92-104121, dated June 23, 1992, concerning the classification of women's upper and lower body garments

Dear Sir:

This ruling is in response to the protest that was filed on behalf of Junior Gallery Ltd., by Barnes, Richardson & Colburn, against your decision concerning the tariff classification of women's upper and lower body garments. Samples were submitted for examination.

FACTS:

The merchandise in question, Style 3732, are women's woven jackets and Style 37321, are women's woven pants. Both items at issue are constructed of 100 percent nylon shell fabric. The garments are also comprised of a knit jersey lining which is made of 65 percent polyester/35 percent cotton material. The jackets have a full frontal opening which has a zippered means of closure, partially elasticized waistband and cuffs, vertical pockets with zipper closures at the waist, and a drawstring tightening at the collar. The jackets also have some decorative embellishments which include shoulder pads, raglan sleeves, decorative designs (including multi-colored fabric inserts and polka dots prints), and braided trimming on the front and back panels. The pants contain a fully elasticized waistband and cuffs with vertical zipper openings.

There appears to be a plastic coating on the outer surface of the material used to make the subject garments. You state that the addition of this coating on the subject articles renders them water resistant for tariff classification purposes. You have 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 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

The jackets were entered at JFK Airport under subheading 6202.93.4500, HTSUSA, which is the provision for women's or girls' water resistant windbreakers or similar articles. The pants were entered at JFK Airport under subheading 6204.30.3000, HTSUSA, which is the provision for women's or girls' water resistant trousers. The pants were liquidated under subheading 6211.43.0040, HTSUSA, which provides for the trousers of a women's or girls' track suit. The jackets were liquidated under subheading 6211.43.0050, HTSUSA, which provides for the jacket component of a women's or girls' track suit.

ISSUE:

Whether the decorative embellishments and the added coating render the merchandise in question unsuitable for use as a track suit which is provided for under Heading 6211, 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.

Heading 6211, HTSUSA, is the provision for track suits. 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 track suit type garments, Customs required additional evidence to substantiate the claim that the garments would be utilized "exclusively or mainly" during sporting activities. 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.

Recently, garments that have the basic construction of track suits described in the EN have been designed with various types of decorative embellishments. In this instance, the merchandise in question has been outfitted with shoulder pads, raglan sleeves, braiding, and decorative designs on the surface material which includes multi-colored fabric inserts and polka dot prints. This type of adornment is not traditionally associated with a garment intended for use in sporting endeavors. Customs is aware, however, that garments constructed for use during sports have currently become more stylish while still being suitable for wear while participating in 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 the garments 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 instant articles contain the general characteristics of a track suits. These characteristics include the elasticized waistband and cuffs, drawstring waist, a lightweight jersey knit lining that breathes and wicks away moisture, shell fabric which is commonly used in the construction of track suits, a loose-fit which improves mobility, and the zippered closure which enables total torso coverage.

After examining the garments, Customs is of the opinion that in spite of the fashionable additions, because of the basic structural characteristics listed above, the garments in question generally meet the criteria of a track suit. Next, Customs must determine whether the embellishments attached to the garments render them unsuitable for use during sporting activities. Although the shoulder pads do not contribute to the usefulness of the clothing during sporting activities, they do not inhibit the wearer during such activities. Also, Customs has assessed the use of shoulder pads in articles constructed for wear while participating in sports in prior cases and determined that shoulder pads, alone, do not prevent classification as a track suit. See Headquarters Ruling Letter (HRL) 950378, dated April 22, 1993; HRL 087966, dated January 30, 1991. In HRL 950378, Customs encountered the issue of braiding attached to garments constructed and intended for use during sports. Customs concluded that the braiding in no way detracted from the subject garments use during athletic activities and classified the articles as a track suit under Heading 6211, HTSUSA.

In this case, Customs must examine the suitability of the raglan sleeves, braiding, and decorative fabric inserts attached to the surface of the jacket. Customs is cognizant of the fact, that such accessories are generally not added to track suits. However, due to recent fashion trends and consumer demand, garments worn while partaking in sporting endeavors have been designed with a wide variety of stylish additions. The multi- colored fabric inserts and braiding are located on the exterior of the jacket. These embellishments in no way hamper the wearer's comfort during rigorous movement. Even with the presence of the accessories on the jacket, the wearer is still able to partake in running and jogging activities with ease. The raglan sleeves, although oversized, are not exaggerated enough to impede the wearer's motions during sports. Therefore, the fashionable additions do not render the subject garments unsuitable for use during sporting activities.

You maintain that the goods in question are properly classifiable as separates under the water resistant category of Chapter 62, HTSUSA. Additional U.S. Note 2, Chapter 62, states, 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 merchandise such as the articles in question, Customs realizes that the items are potentially classifiable under competing provisions. The merchandise has 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 Customs 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 provides for women's trousers. It is important to note that the instant articles have the general appearance and construction of a track suit. However, to be properly classifiable under Heading 6211, HTSUSA, the subject merchandise 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 them to breathe and wick away moisture during sporting activities. Therefore, the subject water resistant articles are classifiable under the applicable water resistant subheadings of Chapter 62, HTSUSA.

HOLDING:

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

The subject 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 protest should be allowed in full. 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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