CLA-2 CO:R:C:T 952572 CAB

District Director of Customs
P.O. Box 52790
Houston, Texas 77052

RE: Request for Further Review of Protest No. 5301-92-100231, dated June 23, 1992, concerning the classification of boys' upper and lower body garments

Dear Sir:

This ruling is in response to the protest that was filed by Scope Imports on June 23, 1992, against your decision concerning the classification of boys' upper and lower body garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of boys' jackets and matching pants. The subject jacket contains an elasticized waistband and sleeves. The pants have an elasticized waist and cuffs. Both garments at issue are constructed of a woven nylon outer shell fabric. The garments also have a nylon lining made of 65 percent polyester and 35 percent rayon lining. The garments are sized small, medium, large, and extra large.

This protest concerns entries of the subject pants and jackets that were liquidated by your port. The pants were liquidated under subheading 6203.43.4020, HTSUSA, which provides for boys' trousers and breeches. The jackets were liquidated under 6201.93.3520, HTSUSA, which is the provision for boys' anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets). The protestant entered the pants under subheading 6211.33.0030, HTSUSA, which is the provision for track suit trousers. The protestant entered the jacket under subheading 6211.33.0035, HTSUSA, which is the provision for the jacket component of a track suit.

ISSUE:

Whether the merchandise in question is properly classifiable as track suits under Heading 6211, HTSUSA?

LAW AND ANALYSIS:

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 EN specifically state that to be properly classifiable under Heading 6211, HTSUSA, as a track suit, the subject garments must be worn "exclusively or mainly" during sporting activities. Thus, in prior instances where Customs had a question as to whether garments would be worn "exclusively or mainly" during sporting activities, Customs required additional evidence of use. As children do not participate in structured sporting activities with the same frequency as adults, Customs consistently requested additional proof from importers of children's garments to substantiate a track suit classification claim.

We have reviewed this position and are now of the opinion that requesting evidence of use for track suit type garments is not the most effective approach in classifying such garments. Customs reached this conclusion after realizing that identical garments could be classified in different headings based on the quality of evidence an importer submitted to support his or her track suit classification claim. As long as Customs can conclude from the general appearance of garments that they fit into a class or kind of merchandise which is intended to be used exclusively or mainly for participation in sporting endeavors, the garments will be classified under Heading 6211, HTSUSA, as a track suit. This principle is applicable to garments in the commercial size ranges of 8-20 for boys and 7-14 for girls, as well as for adult garments. Customs is of the opinion that younger children wearing track suit-like garments in smaller size ranges do not participate in sporting activities in compliance with the requirements of the EN. Thus, children's track suit- like garments sized in commercial categories smaller than the aforementioned size ranges will not be accepted by Customs as track suits.

The merchandise in question has the general characteristics of a track suit. These features include the elasticized waistband and cuffs, the nylon shell fabric which is commonly used in the construction of track suits, and a lightweight lining that is capable of breathing and wicking away moisture. The garments' size range is small to extra-large. A company representative informed Customs that the garments' size range is identical to the boys' 8-20 commercial size range. Thus, since the garments at issue fit into a class or kind of merchandise used exclusively or mainly during sporting activities, they are classifiable under Heading 6211, HTSUSA, as track suits.

HOLDING:

Based on the foregoing, the pants at issue are properly classifiable under subheading 6211.33.0030, HTSUSA, which is the provision for boys' track suit trousers. The applicable rate of duty is 17 percent ad valorem and the textile restraint category is 647. The jackets at issue are properly classifiable under subheading 6211.33.0035, HTSUSA, which is the provision for boys' track suit jackets. The applicable rate of duty is 17 percent ad valorem and the textile restraint category is 634.

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.

Sincerely,

John Durant, Director
Commercial Rulings Division