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HQ 965931




August 14, 2003

CLA-2 RR:CR:TE 965931 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0030; 6211.33.0035

Steven P. Florsheim, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 245 Park Avenue
33rd Floor
New York, NY 10167

RE: Revocation of HQ 953231; Classification of Certain Jackets and Trousers as Track Suits; Imported in Equal Numbers; Classification Based on Condition at the Time of Importation, Classification Based on the Intended Manner of Sale; HQ 962125

Dear Mr. Florsheim:

This letter is in reference to Headquarters Ruling Letter (HQ) 953231, dated May 12, 1993, which decided Protest Number 2704-92-100134, dated January 8, 1992, which was initiated by you on behalf of your client, Etonic, Inc.-Puma Division, concerning the classification of certain merchandise as separates as opposed to as track suits.

Upon review, the Bureau of Customs and Border Protection (CBP) has determined that the classification is incorrect.

HQ 953231 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 change the legal principle applied in HQ 953231. 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 953231, dated May 12, 1993 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 in HQ 953231, dated May 12, 1993, is described as follows:

The imported merchandise consists of two styles of men's jackets and one style of men's trousers. Both the jackets, style "Venus-M-1" (Venus) and "Saturn M-32" (Saturn), are made of a woven nylon fabric and are lined. They have a full front opening, a zipper extending to the top of a stand up collar, back vertical vents, a pocket below the waistline and an embroidered logo. The color pattern for the Venus style is spruce/marigold/ peacock and the color pattern for the Saturn style is spruce/peacock/marigold.

The trousers, "Pluto M-105" (Pluto), are also made of woven nylon fabric. They have an exposed elastic drawcord waist, zippered leg openings, a pocket below the waistline, side seam pockets and an embroidered logo. The trousers are unlined. The color of the trousers is spruce.

2400 jackets and 2400 trousers were imported in a single shipment, but they were packed separately. The breakdown of garment styles and sizes is a follows:

Small
Medium
Large
X-Large
Venus
Jacket
98
360
468
266
Saturn Jacket
96
360
488
264
Pluto Trousers
276
792
883
449

In addition, the protestant submitted a page from the Puma catalogue depicting the Venus jacket and the Pluto pants. It states that the sizes available for the jacket range from S-XL and the jacket's wholesale price is $22.00 and the suggested retail price is $44.00. The trousers' size range from S-XL and the wholesale price is $13.50 and the suggested retail price is $27.00.

Upon liquidation, the jackets were classified in subheading 6201.93.3510, HTSUS, which provides for "[m]en'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: [a]noraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): [o]f man-made fibers: [o]ther: [o]ther: [o]ther: [o]ther: [m]en's." The trousers were classified in subheading 6203.43.4010, HTSUS, which provides for "[m]en's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): [t]rousers...: [o]f synthetic fibers: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther: [t]rousers and breeches [m]en's."

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, 2400 track suit trousers and 2400 track suit jackets were separately packed and entered within the same shipment. Further, 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 classifiable in heading 6211, HTSUSA, and are shipped together in the same shipment, we find the subject merchandise to be classifiable as track suits as follows:

2400 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”;

2400 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.”

In sum, we are striking the reference in HQ 953231 to the intent of the importer as this has no bearing on the classification determination and we are classifying the merchandise based on their condition as imported in heading 6211, HTSUSA, which provides for track suits. For further details, we refer you to HQ 962125, which is enclosed.

HOLDING:

HQ 965931, dated May 19, 1993 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.”

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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