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HQ 955634




July 5, 1994

CLA-2 CO:R:C:T 955634 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3000; 6203.43.3500

Ms. Mary Jo Muoio
Wolf D. Barth Co. Inc.
90 West Street
New York, NY 10006

RE: Request for Reconsideration of DD 888389, dated August 6, 1993; Classification of men's lower and upper body garments; Heading 6211; Heading 6201; Heading 6203; U.S. Additional Note 2, Chapter 62, HTSUSA; water resistant

Dear Ms. Muoio:

This is in response to your request dated November 1, 1993, for reconsideration of DD 888389, dated August 6, 1993, concerning the tariff classification of certain men's upper and lower body garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your request is on behalf of Crystal Brands Men's Sportswear. A sample was submitted for examination.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed modification of DD 888389 was published May 25, 1994, in the Customs Bulletin, Volume 28, Number 21.

FACTS:

The merchandise at issue is described as Style 91310. Style 91310 is comprised of a man's jacket and pants which are constructed of a 100 percent woven nylon shell fabric. The jacket contains a mesh lining, a full frontal opening with zipper closure, rib knit cuffs and waistband, and side slash pockets. The trousers feature an elasticized waistband with drawcord, side slash pockets, two back pockets with zipper closures, and elasticized ankles with zipper closures. The trousers also contain a mesh lining in the top half and a polyester lining in the bottom portion of the leg area.

DD 888389 classified the subject garments as a track suit under Heading 6211, HTSUSA. You now request that the subject garments be classified as water resistant separates due to a polyurethane coating added to the shell of the garments which renders them water resistant.

ISSUE:

Whether the garments in question are classifiable as a track suit under Heading 6211, HTSUSA, or whether they are classifiable as water resistant separates under the appropriate headings in 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.

Heading 6211, HTSUSA, is the provision for woven 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. The attributes include the elasticized waistband, cuffs, and ankles, a lightweight lining that breathes and wicks away moisture, and shell fabric which is commonly used in the construction of track suits.

In your submission you state that the polyurethane coating applied to the exterior of the garments renders them water resistant for tariff purposes. You also submit a test report from a private testing laboratory confirming that the garments are 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.

The garments have the general appearance and characteristics of a track suit provided for under Heading 6211, HTSUSA. However, according to you the garments 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 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 jacket 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 for men's or boys' trousers. As the garments have a polyurethane coating added to their exterior that is said to be in accordance with Additional U.S. Note 2, Chapter 62, HTSUSA, they are classifiable under the applicable water resistant subheading.

HOLDING:

Based on the foregoing, provided the jacket passes the water resistance test of Additional U.S. Note 2, Chapter 62, HTSUSA, it is classifiable in subheading 6201.93.3000, HTSUSA, which provides for men's water resistant windbreakers and similar articles of man- made fibers. The applicable rate of duty is 7.6 percent ad valorem and the textile restraint category is 634.

Provided the trousers pass the water resistance test, they are classifiable in subheading 6203.43.3500, HTSUSA, which provides for men's water resistant trousers of man-made fibers. The rate of duty is 7.6 percent ad valorem and the textile restraint category is 647.

This ruling is a modification of DD 888389 under 19 CFR

In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

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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