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HQ 955783




July 5, 1994
CLA-2 CO:R:C:T 955783

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.3500; 6201.93.3000

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

RE: Modification of DD 887738 of July 29, 1993; track suit vs. water resistant separates; Heading 6211; Heading 6203; Heading 6201

Dear Ms. Muoio:

This is in response to your inquiry of November 1, 1993, on behalf of Crystal Brands Men's Sportswear, requesting reconsideration of DD 887738, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), concerning certain men's upper and lower body garments. 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 887738 was published May 25, 1994, in the Customs Bulletin, Volume 28, Number 21.

FACTS:

The sample submitted, Style 87304, is comprised of a man's jacket and pair of trousers which are constructed of 100 percent nylon fabric and lined with a mesh fabric. The jacket features a full frontal opening with a zipper means of closure, a stand-up collar, long sleeves with ribbed knit cuffs, ribbed knit bottom, and side seam pockets. The trousers contain an elasticized waistband with a drawstring, side seam pockets, a rear pocket, and ribbed knit ankle cuffs.

In the initial inquiry, you stated that the shell fabric used to make the subject garments would be coated with 500mm of polyurethane which would render the garments water resistant for tariff classification purposes. You also attached a copy of a laboratory report which indicated that the garments were water resistant in accordance with the water resistant provision of Additional U.S. Note 2, Chapter 62, HTSUSA. As a result of the added coating to the garments, you assert that they are properly classifiable as water resistant separates in Chapter 62, HTSUSA. In DD 887738, the District Director of Customs classified the garments as track suits provided for under Heading 6211, HTSUSA.

ISSUE:

Whether the subject garments were properly classified as a track suit under Heading 6211, HTSUSA, in DD 887738, 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 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 ribbed knit cuffs, a drawstring waist, a lightweight mesh lining that breathes and wicks away moisture, and shell fabric which is commonly used in the construction of track suits.

Despite the garments' characteristics that would suggest classification as a track suit, you state that the garments are properly classifiable as water resistant separates due to the 500 mm of polyurethane coating applied to the exterior of the garments. 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.

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 jackets and trousers do not meet the minimum requirements for classification as a track suit, the only alternative is to classify them as separates in Chapter 62, HTSUSA. The jackets are classifiable under Heading 6201, HTSUSA, which provides for men's or boys' windbreakers and similar articles. The trousers are classifiable under Heading 6203, HTSUSA, which provides for men's or boys' trousers. If the polyurethane coating applied to the surface of the garments meets the requirements of Additional U.S. Note 2, Chapter 62, HTSUSA, they will be classifiable as water resistant separates in Chapter 62, HTSUSA.

HOLDING:

Provided the jackets meet the requirements for water resistance in accordance with Additional U.S. 2, Chapter 62, HTSUSA, then the applicable subheading is 6201.93.3000, HTSUSA, which provides for other men's water resistant anoraks, windbreakers and similar articles of man-made fibers. The rate of duty is 7.6 percent ad valorem and the textile restraint category is 634. Provided the trousers meet the water resistance test, then the applicable subheading is 6203.43.3500, HTSUSA, which provides for other men's water resistant trousers of man-made fibers. The duty rate is 7.6 percent ad valorem and the textile restraint category is 647.

This notice to you should be considered a modification of DD 887738 under 19 CFR 177.9(d)(1).

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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