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HQ 954270


August 17, 1993

CLA-2 CO:R:C:T 954270 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3000; 6203.43.3500

Robert L. Follick, Esq.
Gibney, Anthony & Flaherty
665 Fifth Avenue
New York, NY 10022-5305

RE: Classification of water resistant separates; Chapter 62; Heading 6211; track suits; sets v. separates

Dear Mr. Follick:

This ruling is in response to your inquiry of May 3, 1993, on behalf of your client, Network Industries Corporation, requesting a tariff classification for men's upper and lower body garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). No samples were forwarded to Customs Headquarters for examination. The garments will be imported from Pakistan.

FACTS:

You requested a binding ruling on prospective importations described as men's "rains suits". The garments contain a 100 percent woven nylon outershell and a 600 mm coating. The coating will render the garments water resistant. The jacket component is lined with 50 percent cotton/50 percent polyester jersey knit fabric. The sleeves are lined with a 100 percent nylon lining. The jacket also contains a full-frontal opening with a zipper means of closure, elasticized waistband and cuffs, side seam pockets with zippers at the waist. The pants contain elastic and a drawstring for tightening at the waist, side seam pockets, a jersey knit lining, and elasticized cuffs with vertical zippers. The size range of the garments in question is small to extra large.

You state that the garments will either be shipped separately on different vessels, packaged as a set on the same vessel, or packaged separately on the same vessel. If the garments are packaged separately, there is a possibility that there will be unequal quantities of jackets and pants.

ISSUE:

Whether the garments in question are classifiable as track suits 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.

The instant garments contain the general characteristics of a track suit. These attributes include the elasticized waistband and cuffs, drawstring waist, a lightweight jersey knit lining that breathes and wicks away moisture, and shell fabric which is commonly used in the construction of track suits.

As stated above, you assert that the garments in question will have 600 mm of coating which will render them water resistant for tariff classification purposes. You further maintain that the garments are properly classifiable under the water resistant provision of Chapter 62, HTSUSA. 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.

The instant garments have the general appearance and characteristics of a track suit, which is specifically provided for under Heading 6211, HTSUSA. However, the garments will also meet the water resistant test for separates provided at the subheading level of Chapter 62, HTSUSA. In addition to having the characteristics of a track suit as described in the EN, to be properly classifiable as a track suit, garments must also be suitable for use during sporting activities. In this case, the extensive coating which will be added to the garments' surface will not allow them to breathe and wick away moisture during sporting activities. Customs has consistently stated that a minimum prerequisite for garments suitable for wear during participation in sporting activities is that they be capable of breathing and wicking away perspiration. As the instant garments do not meet this minimum requirement, they are not classifiable as a track suit under Heading 6211, HTSUSA.

Since the jackets and pants do not meet the minimum requirement for classification as a track suit, the only other alternative is to classify them as separates in Chapter 62, HTSUSA. The jackets are properly classifiable under Heading 6201, HTSUSA, which provides for men's or boys' windbreakers and similar articles. The pants are properly classifiable under Heading 6203, HTSUSA, which provides men's or boys trousers. Since the garments in question will have 600 mm of coating added to their exterior surface, they will meet the water resistance test in accordance with Additional U.S. Note 2, Chapter 62, HTSUSA. Therefore, they are classifiable under the applicable water resistant subheading.

You also pose the question of where the garments would be classified if they are shipped separately on different vessels, packaged as a set on the same vessel, or packaged separately on the same vessel. Moreover, if the garments are packaged separately, there is a possibility that there will be unequal quantities of jackets and pants. Because we have found that the garments in question are properly classifiable as water resistant separates, the method in which they are shipped and packaged will have no bearing on the determined classification.

It important to note, however, that C.S.D 92-11, expresses Customs position on garments that are packaged separately and sold in units. In C.S.D. 92-11, Customs concluded that components of a set need not be packaged together at time of entry in order to be considered classifiable as a set, but all garments must be present in the entry and there must be an equal amount of components to make up the set in the shipment. Therefore, if the instant goods contained the general characteristics of a track suit and were not coated, the classification outcome would be as follows: If the goods were shipped separately on different vessels, they would not be classifiable as a set; If the instant goods were shipped on the same vessel, listed on the entry, and not packaged as a set, with an equal amount of trousers and jackets, they would be classifiable as a set; and, if the instant goods were shipped on the same vessel, listed on the entry, packaged separately, with an unequal amount of trousers and jackets, the extra components would be classifiable as separates. This rationale is premised on the fact that the EN require two garments to make up a track suit. Therefore, in the case of unequal shipments, the extra components are classifiable separately because it takes two components to make a track suit. In the case of shipments of one component, the lone component is not classifiable as a track suit.

HOLDING:

Provided the garments meet the water resistant test of Additional U.S. Note 2 to Chapter 62, HTSUSA, the jacket in question is classifiable under subheading 6201.93.3000, HTSUSA, which is the provision for men's or boys' water resistant windbreakers and similar articles. The applicable rate of duty is 7.6 percent ad valorem and the textile restraint category is 634. The pants at issue are classifiable under subheading 6203.43.3500, HTSUSA, which provides for men's or boys' water resistant trousers. The applicable rate of duty is 7.6 percent ad valorem and the textile restraint category is 647.

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
Commercial Rulings Division

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