CLA-2 CO:R:C:T 950203 PR
Mr. Marc Greenberg
American Shipping Company, Inc.
P.O. Box 1486
Englewood Cliffs, N.J. 07632
RE: Modification of NYRL 863985--Garments Held Not To Be
Classifiable As Track Suits
Dear Mr. Greenberg:
This is in reply to your letter of July 22, 1991, addressed
to our Regional Commissioner in New York, requesting that Customs
reconsider it's decision in New York Ruling Letter (NYRL) 863985,
dated June 17, 1991. Our ruling on the matter follows.
FACTS:
NYRL 863985 determined that the subject two-piece garment
set, style 42-6210A, was classifiable under provisions for track
suits, rather than as ensembles, or according to the individual
jacket and pants components comprising the set.
The submitted samples, a matching solid color jacket and
pants set, are constructed with a woven polyester outer shell and
a knit 65 percent polyester/35 percent cotton lining. The outer
shell is stated to have been sprayed on its inner surface with a
polyurethane plastics material (which is visible only under
magnification). An independent laboratory report has been
submitted as evidence that the garments meet the requirements for
classification under the provisions for "water resistant"
apparel.
The jacket has a pointed collar with a braided drawstring
inserted along its edge; long sleeves with elasticized cuffs; a
full front zippered opening that extends half way through the
collar; a storm flap which covers the front zipper and which is
secured in place by six metal snaps; an elasticized waist; and
two large horizontal opening patch pockets, each with a single
metal snap closure; and a separate vertical opening pocket formed
by each patch pocket.
The pants have an elasticized waist with drawstring, and
elasticized cuffs with zippered openings extending eight inches
upward from the ankles.
Numerous letters from various retail stores (customers of
the importer) were submitted, attesting to the fact that they
sell leisure wear and not athletic garments. However, we have
not considered these letters since none contains any statement
about the particular merchandise in question.
ISSUE:
The issue presented is whether the two garments are
classifiable under provisions for track suits, or as ensembles,
or whether they are separately classifiable.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. It appears that GRI 1
governs the classification of the subject merchandise.
Note 13, Section XI, HTSUSA, provides that unless "the
context otherwise requires, textile garments of different
headings are to be classified in their own headings even if put
up in sets for retail sale." Accordingly, in the absence of a
provision requiring that these sets be classified as such, the
garments comprising the sets are classifiable separately.
Chapter 62, HTSUSA, contains the provisions under which
woven garments are classifiable. Note 5 to that chapter
provides:
Articles which are, prima facie, classifiable both in
heading 6210 and in other headings of this chapter,
excluding heading 6209, are to be classified in heading
6210.
Heading 6210, HTSUSA, provides for garments made up of
fabrics of, among other provisions, Heading 5903, HTSUSA.
Heading 5903, HTSUSA, provides for textile fabrics impregnated,
coated, covered, or laminated with plastics, other than tire cord
fabrics. Note 2 to Chapter 59, HTSUSA, states, in pertinent
part, that Heading 5903 applies to:
(a) Textile fabrics, impregnated, coated, covered or
laminated with plastics, whatever the weight per square
meter and whatever the nature of the plastic material
(compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or
covering cannot be seen with the naked eye * * * for
the purpose of this provision, no account should be
taken of any resulting change of color;
Accordingly, since the plastics on the fabric comprising
outer shells of the sample garments is not visible to the naked
eye, those garments are not "made up of fabrics of Heading 5903"
and, therefore, are not classifiable in Heading 6210.
In view of the statements made in the ruling request, we
will assume, for the purposes of this ruling, that the outer
shells of the subject garments comply with the requirements of
Additional U.S. Note 2 of Chapter 62, HTSUSA. That note
provides;
[T]he term "water resistant" means that garments
classifiable in those subheadings must have a 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 term "ensemble" is stated in Note 3(b), Chapter 62,
HTSUSA, to mean:
[A] set of garments (other than suits and articles of
heading 6207 or 6208 [underclothing]) composed of several
pieces made up in identical fabric, put up for retail sale,
and comprising:
- one garment designed to cover the upper part of the
body, with the exception of waistcoats, which may also
form a second upper garment, and
- one or two different garments, designed to cover the
lower part of the body and consisting of trousers ***
All of the components of an ensemble must be of the same
fabric construction, style, color and composition; they also
must be of corresponding or compatible size. The term
"ensemble" does not apply to track suits or ski-suits of
heading 6211. (italics supplied)
The garments comprising style 909 meet all the requirements
for classification as an ensemble, provided that they are not
classifiable in Heading 6211.
Heading 6211 provides for "track suits." The Harmonized
Commodity Description and Coding System, Explanatory Notes, which
are the official interpretation of the HTSUSA at the
international level (for the 4 digit headings and the 6 digit
subheadings) 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." (at page 841)
In Customs Headquarters Letter Ruling (HRL) 088569, dated
May 31, 1991, it was held that only garments which are commonly
and commercially known as "track suits" are classifiable as
"track suits." These are garments which are usually associated
in some manner with running or jogging. In addition, Customs has
previously ruled in HRL 087511, dated January 14, 1991, and HRL
087966, dated January 30, 1991, that woven track suits may have
linings. However, we do not believe that the instant merchandise
is classifiable as track suits.
Due to fashion changes, many all purpose and leisure-type
garments are styled to resemble warm-up and track suits. These
garments can be seen being worn in grocery stores, on golf
courses, in shopping malls, etc., and resemble, in appearance,
real warm-up and track suits. Since track suits are required to
be intended to be worn exclusively or mainly for sporting
activities (related to running and jogging), garments which are
not intended for those type activities will most likely be worn
for leisure and other nonrunning and nonjogging activities.
In this regard, our attention has focused on the jacket
portion of the sample set. It appears to be more of a
windbreaker-type garment than the upper portion of a track suit.
In our experience, we have never seen a true track suit where the
upper garment had a storm flap (with or without metal snap
closures), an elasticized waist, and large pockets, of the type
present on the instant garment. In view of these features, we
believe that although the upper portion of the set could be used
for jogging or other similar athletic activities, its primary use
will be as an outer jacket. Accordingly, the set is not a track
suit and meets all the qualifications for classification as an
ensemble.
HOLDING:
The sample set of garments is classifiable under the
provisions for women's ensembles of synthetic fibers--the jacket
in subheading 6204.23.0030, HTSUSA, and the trousers in
subheading 6204.23.0040, HTSUSA. Both are dutiable at the rate
applicable if imported separately. If imported separately, the
jacket would be classifiable under the provision for water
resistant anoraks, windbreakers, and similar garments, in
subheading 6202.93.4500, HTSUSA, and the trousers under the
provision for water resistant trousers of synthetic fibers, in
subheading 6204.63.3000, HTSUSA. In each instance, the
applicable rate of duty is 7.6 percent ad valorem. The
designated textile and apparel category applicable to the jacket
is 635 and the category applicable to the trousers is 648.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, pursuant to Section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), NYRL
863985 is modified to reflect the above classification effective
with the date of this letter. If, after your review, you
disagree with the legal basis for our decision, we invite you to
submit any arguments you may have with respect to this matter.
Any submission you wish to make should be received within 30 days
of the date of this letter.
This modification is not retroactive. However, NYRL 863985
will not be valid for importations of the subject merchandise
arriving in the United States after the date of this notice. We
recognize that pending transactions may be adversely affected
(i.e. NYRL 863985 will not be applicable to merchandise
previously ordered and arriving in the United States subsequent
to this modification). If it can be shown that you relied on
NYRL 863985 to your detriment, you may apply to this office for
relief. However, you should be aware that in some instances
involving import restraints, such relief may require separate
approvals from other government agencies.
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 importation of this merchandise to determine the current
status of any import restraints or requirements.
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.
Sincerely,
John Durant, Director
Commercial Rulings Division