CLA-2 CO:R:C:T 954270 CAB
Robert L. Follick, Esq.
Gibney, Anthony & Flaherty
665 Fifth Avenue
New York, NY 10022-5305
RE: Classification of water resistant separates; Chapter 62;
Heading 6211; track suits; sets v. separates
Dear Mr. Follick:
This ruling is in response to your inquiry of May 3, 1993,
on behalf of your client, Network Industries Corporation,
requesting a tariff classification for men's upper and lower body
garments under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). No samples were forwarded to Customs
Headquarters for examination. The garments will be imported from
Pakistan.
FACTS:
You requested a binding ruling on prospective importations
described as men's "rains suits". The garments contain a 100
percent woven nylon outershell and a 600 mm coating. The coating
will render the garments water resistant. The jacket component
is lined with 50 percent cotton/50 percent polyester jersey knit
fabric. The sleeves are lined with a 100 percent nylon lining.
The jacket also contains a full-frontal opening with a zipper
means of closure, elasticized waistband and cuffs, side seam
pockets with zippers at the waist. The pants contain elastic and
a drawstring for tightening at the waist, side seam pockets, a
jersey knit lining, and elasticized cuffs with vertical zippers.
The size range of the garments in question is small to extra
large.
You state that the garments will either be shipped
separately on different vessels, packaged as a set on the same
vessel, or packaged separately on the same vessel. If the
garments are packaged separately, there is a possibility that
there will be unequal quantities of jackets and pants.
ISSUE:
Whether the garments in question are 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 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 cuffs, drawstring waist, a lightweight jersey knit lining
that breathes and wicks away moisture, and shell fabric which is
commonly used in the construction of track suits.
As stated above, you assert that the garments in question
will have 600 mm of coating which will render them water
resistant for tariff classification purposes. You further
maintain that the garments are properly classifiable under the
water resistant provision of Chapter 62, HTSUSA. 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.
The instant garments have the general appearance and
characteristics of a track suit, which is specifically provided
for under Heading 6211, HTSUSA. However, the garments will also
meet the water resistant test for separates provided at the
subheading level of Chapter 62, HTSUSA. In addition to having
the characteristics of a track suit as described in the EN, to be
properly classifiable as a track suit, garments must also be
suitable for use during sporting activities. In this case, the
extensive coating which will be 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 pants do not meet the minimum
requirement for classification as a track suit, the only other
alternative is to classify them as separates in Chapter 62,
HTSUSA. The jackets are properly classifiable under Heading
6201, HTSUSA, which provides for men's or boys' windbreakers and
similar articles. The pants are properly classifiable under
Heading 6203, HTSUSA, which provides men's or boys trousers.
Since the garments in question will have 600 mm of coating added
to their exterior surface, they will meet the water resistance
test in accordance with Additional U.S. Note 2, Chapter 62,
HTSUSA. Therefore, they are classifiable under the applicable
water resistant subheading.
You also pose the question of where the garments would be
classified if they are shipped separately on different vessels,
packaged as a set on the same vessel, or packaged separately on
the same vessel. Moreover, if the garments are packaged
separately, there is a possibility that there will be unequal
quantities of jackets and pants. Because we have found that the
garments in question are properly classifiable as water resistant
separates, the method in which they are shipped and packaged will
have no bearing on the determined classification.
It important to note, however, that C.S.D 92-11, expresses
Customs position on garments that are packaged separately and
sold in units. In C.S.D. 92-11, Customs concluded that
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.
HOLDING:
Provided the garments meet the water resistant test of
Additional U.S. Note 2 to Chapter 62, HTSUSA, the jacket in
question is classifiable under subheading 6201.93.3000, HTSUSA,
which is the provision for men's or boys' water resistant
windbreakers and similar articles. The applicable rate of duty
is 7.6 percent ad valorem and the textile restraint category is
634. The pants at issue are classifiable under subheading
6203.43.3500, HTSUSA, which provides for men's or boys' water
resistant trousers. The applicable rate of duty is 7.6 percent
ad valorem and the textile restraint category is 647.
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