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HQ 955658




May 19, 1994

CLA-2 CO:R:C:T 955658 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0030; 6211.33.0035

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, NY 10048-0945

RE: Request for Further Review of Protest No. 1001-93-104232, dated June 30, 1993, concerning the classification of men's upper and lower body garments

Dear Sir:

This is a decision on application for further review of a protest timely filed by Sandler, Travis & Rosenberg, on behalf of Champion Products, Inc., against your decision concerning the classification of certain men's upper and lower body garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted for examination.

FACTS:

The merchandise in question is men's 100 percent woven nylon matching jackets and pants. The protestant states that the garments are exact replicas of warm-up suits worn by the players of the National Basketball Association (NBA). The pants contain an elasticized waistband with a drawstring means of closure and are lined with a 65 percent polyester/35 percent cotton knit fabric. The pants also have a nine snap opening along the outside of each trouser leg which extends from the ankle to the waistband. The jackets have a full front zipper opening, rib cuffs and waistband, and a nylon mesh lining.

This protest concerns entries of the subject pants and jackets that were liquidated at JFK Airport. The pants were liquidated under subheading 6203.43.4010, HTSUSA, which provides for men's trousers. The jackets were liquidated in subheading 6201.93.3510, HTSUSA, which provides for men's windbreakers and similar articles. The protestant claims that the garments are classifiable as track suits and entered the pants in subheading 6211.33.0030, HTSUSA, and the jackets in 6211.33.0035, HTSUSA.

ISSUE:
Whether the subject merchandise is 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 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.

As a result of the recent trend to design garments intended for use in sporting activities with features not traditionally utilized for track suits and not specifically provided for in the tariff or the EN, Customs has the formidable task of determining whether these particular garments are classifiable as track suits for tariff purposes. 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. After further review of this position, Customs is now of the view 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.

The instant garments contain the general characteristics of a track suit. These characteristics include the elasticized waistband and cuffs, a lightweight lining that breathes and wicks away moisture, shell fabric which is commonly used in the construction of a track suit, a loose-fit which improves mobility, and the zippered torso which enables total torso coverage. However, the pants also contain a nine snap opening that extends from the waist to the cuff area.

EN 6211, HTSUSA, states that the provisions of the EN to Heading 6112, HTSUSA, applies mutatis mutandis, to the articles of this heading. EN 6112 which is applicable to Heading 6211, HTSUSA, states, in pertinent part:

Track suits consist of two garments, namely:

- A garment meant to cover the upper part of the body down to or slightly below the waist. It has long sleeves, with ribbed or elasticated bands, zip fasteners or other tightening elements at the cuffs.
Similar tightening elements, including drawstrings, are generally to be found at the bottom of this garment. When it has a partial or complete opening at the front, it is generally fastened by means of a slide fastener (zipper). It may or may not be fitted with a hood, a collar and pockets.

- A second garment (a pair of trousers) which may be either close or loose fitting, with or without pockets, with an elasticized waistband, drawstring or other means of tightening at the waist, with no opening at the waist and therefore no buttons or other fastening system. However, such trousers may be fitted with ribbed or elasticated bands, slide fasteners (zippers) or other tightening elements at the bottom of the trouser-legs which generally go down to ankle level. They may or may not have footstraps.

As stated above, the provisions of the EN to Heading 6112, HTSUSA, (knitted or crocheted) concerning track suits apply mutatis mutandis to Heading 6211, HTSUSA, which is the heading that applies to woven track suits. Mutatis Mutandis is defined by Black's Law Dictionary (West 1979), as: "with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary...." The Compact Edition of the Oxford English Dictionary (Oxford 1987), continues with "things being changed that have to be changed, i.e., with the necessary changes...."

When classifying garments as track suits, Customs has consistently stated that through design and construction, garments must have the general appearance of a track suit. As stated above, the subject garments have the general appearance of a track suit. However, the trousers also contain a snap side opening on either side of each leg. The garments are designed for men engaging in various types of sports and specifically basketball. The presence of full side openings secured by snaps enable the wearer to slip in and out of the garments with ease during warm-ups as well as during a game. Garments identical to the subject merchandise are utilized by NBA players during their practices and before the commencement of a game.
In this case, the pair of woven pants at issue feature a nine snap opening starting at the waist and continuing to the cuffs. When applying the EN to 6112, HTSUSA, which pertains to knitted garments, to Heading 6211, HTSUSA, which applies to woven garments, it would appear that the trousers are not classifiable as a pant component of a track suit under Heading 6211, HTSUSA. This would be the case under Heading 6112, HTSUSA, since the EN to 6112, HTSUSA, specifically prohibit classifying trousers with an opening at the waist as track suit components. However, the EN to Heading 6112, HTSUSA, apply to the woven garments of Heading 6211, HTSUSA, mutatis mutandis, in other words, with the necessary changes that are required when applying EN written and intended for application to a crocheted or knitted heading to a woven heading.

The subject trousers are clearly constructed and intended for use during sporting endeavors. As stated above the nine snap opening located on woven the trousers enables the wearer to slip them on and off with ease. This snap opening does not have the same utilitarian purpose with knitted garments as with woven garments since a knitted garment generally is more flexible due to its construction. Usually a pair of knitted trousers can be pulled on or off with a lot more ease than a pair of woven trousers. Also, when partaking in sporting activities, a person is frequently wearing athletic shoes that are bulky and prevent the wearer from sliding woven warm-up pants over top of them without difficulty. Knitted track suit pants possess more flexibility and can be stretched over a pair of cumbersome sneakers; a pair of woven pants cannot be stretched with the same degree of comfort. Therefore, it is Customs opinion that "necessary changes in points of detail," from knitted track suits to woven, allow the presence of a snap or zippered opening from the waist area to the cuffs on each side of a pair of trousers that otherwise meet the general appearance requirements for classification as track suit trousers. Thus, these particular garments are classifiable as track suits under Heading 6211, HTSUSA.

The position Customs is taking with regard to the subject woven trousers is not a novel approach when dealing with EN applicable to one heading which also apply mutatis mutandis to another heading. In Headquarters Ruling Letter (HRL) 087511, dated January 14, 1991, Customs determined that in applying the EN to Heading 6112, HTSUSA, for knitted garments, to Heading 6211, HTSUSA, which pertained to woven garments, it had neglected to take into account various physical distinctions between the two different types of construction. In HRL 087511, Customs stated the following:

[W]oven outer shells of track suits do not solely impart the aforementioned characteristics. It is our opinion that necessary changes in points of detail from knitted track suits to woven, allow 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.

The aforementioned position is in accordance with HRL 088423 dated May 20, 1991, where Customs classified certain jackets and trousers, Style 0900, as track suits. The trousers of Style 0900 were described as having zippers extending from the cuffs to the waist in addition to containing adjustable snap tabs at the waist. This position is limited to woven trousers with openings on each side of the trouser leg extending from the waistband to cuff area.

HOLDING:

Based on the foregoing, the subject jackets are classifiable in subheading 6211.33.0035, HTSUSA, which provides for men's track suit jackets of man-made fibers. The applicable rate of duty is 17 percent ad valorem and the textile restraint category is 634. The subject trousers are classifiable in subheading 6211.33.0030, which provides for men's track suit trousers of man-made fibers. The applicable rate of duty is 17 percent ad valorem and the textile restraint category is 647.

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.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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