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HQ 950185




November 13, 1991

CLA-2 CO:R:C:T 950185 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3520; 6203.43.3500; 6203.43.4020

Mr. Jack Dweck
Chase International Corporation
350 Fifth avenue, Suite 1012
New York, New York 10118

RE: Classification of a Boy's Two-Piece Track-Style "Jogging Suit"

Dear Mr. Dweck:

Your letter of July 12, 1991, addressed to Mr. William Raftery, in our New York office, concerning the classification of a boy's track suit-style jogging outfit, has been referred to this office for reply. Our ruling on the matter follows.

FACTS:

The submitted sample is a set of garments--pants and a jacket. Both articles consist of a woven nylon outer shell that has been lined with a 65 percent polyester/35 percent cotton knit fabric. It is stated that outer shells of both garments has a 600 mm polyurethane coating to make them waterproof. The polyurethane application is not visible to the naked eye.

The jacket has a full front opening with a zipper that extends through the collar, elastized cuffs and waistband, and two front slant pockets at the waist. The body of the garment, and most of the sleeves, is made from a blue fabric. The front and back yokes are made from separate fabrics which are colored differently. A 5-« inch wide (approximate) portion of each upper arm area is also made from a different colored fabric.

The all blue trousers have an elasticized waist, side seam pockets, a rear zippered pocket, elasticized leg bottoms, and eight inch long zippers which extend vertically upward from the leg bottoms. The set will be imported in boys sizes 8-18. This office has applied water to the jacket and pants and determined that the fabrics forming the front yokes on the jacket apparently have no plastics applied since they readily absorb the water. The fabrics forming the rest of the garments do appear to have water repellency properties.

ISSUE:

The following issues are presented:

(1) Are the garments "coated" for tariff purposes;

(2) If not, are they classifiable as a single unit--as a suit, track suit, or ensemble; and

(3) If neither of the above, are the garments classifiable under the provisions for water resistant garments.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes. It appears that GRI 1 governs the classification of the subject merchandise.

Note 5 to Chapter 62, HTSUSA, provides that garments which are classifiable, prima facie, in both Heading 6210, HTSUSA, and any other heading of that chapter (other than 6209), are to be classified in Heading 6210. Accordingly, if the outer shells are coated (for tariff purposes), the samples are classifiable under Heading 6210, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for garments made up of fabrics of Heading 5903, HTSUSA. Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered, or laminated with plastics, other than tire cord fabrics. Note 2 to Chapter 59, HTSUSA, states that Heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye * * * for the purpose of this provision, no account should be taken of any resulting change of color;

* * * Since the polyurethane application to the outer shells is not visible to the naked eye, the fabrics are not "coated" for tariff purposes and the garments are not classifiable under Heading 6210.

Note 13, Section XI, HTSUSA, provides that unless "the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale." Therefore, in the absence of a provision requiring that the instant garments be classified together as a set, they must be classified as separates.

To be classifiable as a set at the heading level, the garments must be considered to be either a suit, an ensemble or a track suit. The instant garments do not conform to the requirements in Note 3(a), Chapter 62, for suits. Ensembles are required by Note 3(b), Chapter 62, HTSUSA, to consist of components of the same fabric construction, style, color and composition. The two garments do not have the same colors, so they do not qualify as ensembles.

Heading 6211 provides for "track suits." The Harmonized Commodity Description and Coding System, Explanatory Notes, which are the official interpretation of the HTSUSA at the international level (for the 4 digit headings and the 6 digit subheadings) 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." (at page 841)

In Customs Headquarters Letter Ruling (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.

Although Customs has previously ruled that woven track suits may have linings, HRL 087511, dated January 14, 1991, HRL 087966, dated January 30, 1991, 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 play grounds, etc., and are virtually indistinguishable in appearance from real warm-up and track suits. Since track suits must 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 and only occasionally worn for activities related to running or jogging.

Consequently, 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 that the merchandise in question is intended to be worn during running or jogging, or related activities. In the absence of such evidence, Customs may classify such garments under provisions other than those which provide for track suits.

Customs has no evidence that the instant garments are designed and intended to be worn exclusively or mainly for sporting activities and the responsible Customs National Import Specialist has reported that, in his view, the subject merchandise does not qualify as a track suit because it is not worn exclusively or mainly in the pursuit of sporting activities.

Typically, the types of sporting activities engaged in by children (assuming these outfits are worn at all for sporting activities) would not involve wearing such an outfit. These would include organized sports such as baseball, soccer, basketball, etc., which involve uniforms, and track and field sports that mostly involve knit suits and outfits issued by schools. To some extent children might play another sport such as tennis which might involve wearing one of these outfits, but we believe that would not be the norm * * * Instead, this is general purpose apparel worn, at most, only rarely during sports.

In view of the foregoing, the instant garments are not classifiable under Heading 6210, or as a unit--a suit, ensemble, or track suit. The remaining question is whether the garments are classifiable under the water resistant provisions in Chapter 62.

For the purposes of certain specified subheadings, Additional U.S. Note 2, Chapter 62, provides;

[T]he term "water resistant" means that garments classifiable in those subheadings must have a 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. (italics supplied)

In Customs Headquarters Ruling (HRL) 087317, dated February 7, 1991, this office held that a jacket with a significant portion not water resistant could not be classified under provisions which require the garment to be water resistant. In a similar manner, the sample jacket has significant portions which are not water resistant (the front yokes) and, therefore, the garment does not qualify as water resistant within the purview of Additional U.S. Note 2.

HOLDING:

The two garments forming the set are classifiable separately.

(1) The jacket is classifiable under the provision for boys' woven windbreakers and garments, of man-made fibers, in subheading 6201.93.3520, HTSUSA, with duty, as a product of Taiwan, at the rate of 29.5 percent ad valorem. The textile and apparel category applicable to this merchandise is 634.

(2) The pants are classifiable, if they meet the requirements of Additional U.S. Note 2, under the provision for men's or boys' woven water resistant trousers, of man-made fibers, in subheading 6203.43.3500, HTSUSA, with duty, as product of Taiwan, at the rate of 7.6 percent ad valorem. If the trousers fail to meet the requirements of Additional U.S. Note 2, they are classifiable under the provision for boys' woven man-made fiber trousers, in subheading 6203.43.4020, with duty, as a product of Taiwan, at the rate of 29.7 percent ad valorem. In either event, the textile and apparel category applicable to this merchandise is 647.

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

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.

Sincerely,

John Durant, Director

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