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HQ 965929




August 14, 2003

CLA-2 RR:CR:TE 965929 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0030, 6211.33.0035, 6201.93.3511

George R. Tuttle, P.C.
Three Embarcadero Center, Suite 1160
San Francisco, CA 94111

RE: Revocation of HQ 956298; Protest No. 2809-93-102031; Classification of track suits; Imported in Unequal Numbers but Separately Packed, Invoiced & Entered; Classification Based on Condition at the Time of Importation, Classification Based on the Intended Manner of Sale; HQ 962125

Dear Mr. Tuttle:

This letter is in reference to Headquarters Ruling Letter (HQ) 956298, dated March 9, 1995, which decided Protest Number 2809-93-102031, dated December 9, 1993, which was initiated by you on behalf of your client, WESOC, Inc., concerning the classification of certain merchandise as jackets and pants as opposed to track suits.

Upon review, the Bureau of Customs and Border Protection (CBP) has determined that the classification is incorrect. This ruling letter sets forth the correct classification determination based on the articles condition as imported rather than the intended manner of sale as represented by the importer.

HQ 956298 is hereby revoked for the reasons set forth below. Although a final determination of a protest pursuant to Customs Regulations cannot be modified or revoked as it is applicable only to the entries protested, this ruling serves to modify the legal principle applied in HQ 956298. Further, this revocation decision will be applicable to any unliquidated entries or future importations of similar merchandise.

Pursuant to section 625(c), Tariff Act of 1930, 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) notice of the proposed revocation of HQ 956298, dated March 9, 1995, was published on July 2, 2003, in Vol. 37, No. 27 of the CUSTOMS BULLETIN. No comments were received in response to this notice. FACTS:

The merchandise at issue consists of 2880 warm up pants and 5040 warm up jackets that were packed separately on the same ship and listed on separate entries. The importer claimed that the separate entries were made in error.

The importer further claimed that 2880 pairs of pants should have been classified with 2880 jackets in order to be classified as track suits in subheading 6211.33.0050, HTSUSA, (the jackets) and subheading 6211.33.0040, HTSUSA (the pants).

ISSUE:

What is the proper classification of the merchandise within the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Woven track suits are provided eo nomine in heading 6211, HTSUSA. EN 62.11 states, in pertinent part, that “the provisions of the Explanatory Note to heading 61.12 concerning track suitsand of the Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of this heading.” We refer to EN 61.12 which describes track suits as consisting 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 elasticated 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.

Track suits are classifiable based on GRI 1. As such, track suit components that form sets are not required to be “put up for retail sale” under GRI 3(b). In order for the subject track suit components to be classifiable within heading 6211, HTSUSA, they should be packed in the same shipment at the time of importation, but not necessarily on the same hanger or in the same container. See Headquarters Ruling (HQ) 962125, dated May 5, 2000, referencing the following: Headquarters Memorandum 085944 PR, dated May 10, 1991; HQ 088423, dated May 20, 1991; HQ 952584, dated December 8, 1992; HQ 952907, dated January 29, 1993; HQ 952704, dated February 1, 1993; HQ 953231, dated May 12, 1993; HQ 954270, dated August 17, 1993; HQ 955519, dated April 15, 1994; HQ 956298, dated March 9, 1995.

In this instance, 2880 track suit pants and 2880 track suit jackets were entered in the same shipment. The remaining 2160 track suit jackets were also entered from the same shipment without matching pants. We refer you to HQ 962125, dated May 5, 2000, which is listed above. In HQ 962125, Customs expressed the view that classification is based on the merchandise’s condition as imported rather than the intent of the importer. Id. (clarifying that matching suit jackets and bottoms are classifiable as suits based on their condition as imported if they are imported in equal numbers in the same size range and meet the chapter note definition of suits.)

It is also stated that the intent of the importer is irrelevant to the classification of the goods. See Headquarters Ruling (HQ) 962125, referring to C.S.D. 92-11 (which applies the appropriate analysis of classifying track suit components) as follows:

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. This ruling serves to apply HQ 962125, by determining that the subject track suit components are classifiable within heading 6211 (based on their condition as imported), if they are imported together in equal quantities that are matched by size, and if they are constructed and designed to be used exclusively or mainly for athletic activities. See HQ 962039 dated April 11, 2000 citing to HQ 950378, dated April 22, 1993, which classified garments with shoulder pads, metallic yarn and multicolored thread embroidery, metallic braided piping, beads, and textile and plastic overlays as a track suit in heading 6211, HTSUSA.

Based on the submitted facts, as the subject track suit components are shipped together in the same shipment, we find an equal number of pants and jackets are classifiable as track suits as follows:

2880 of the subject trousers are classifiable in subheading 6211.33.0030, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys’: Of man-made fibers: Track suits: Trousers.”

2880 of the subject jackets are classified in subheading 6211.33.0035, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys’: Of man-made fibers: Track suits: Other.”

The remaining track suit jackets are classified separately as entered in subheading 6201.93.3511, HTSUSA, which provides in general for men’s outwear jackets.

In sum, we are striking the reference in HQ 956298 to the intent of the importer as this has no bearing on the classification determination and we are classifying the merchandise based on its condition as imported. For further details, we refer you to HQ 962125, which is enclosed.

HOLDING:

HQ 956298, dated March 9, 1995, is hereby revoked.

The matching track suit pants and jackets (which are entered in equal quantities) are classifiable as tracksuits. The matching pants are classifiable in subheading 6211.33.0030, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys’: Of man-made fibers: Track suits: Trousers.”

The matching jackets are classified in subheading 6211.33.0035, HTSUSA, which provides for "Track suits, ski-suits and swimwear; other garments: Other garments, men's or boys’: Of man-made fibers: Track suits: Other.”

The remaining jackets which lack matching pants are classified separately as entered in subheading 6201.93.3511, HTSUSA, which provides for “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets) windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Other: Other: Other: Other, Men’s."

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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