CLA-2 CO:R:C:T 953228 CAB
District Director
U.S. Customs Service
110 S. Fourth Street
Room 137
Minneapolis, MN 55401
RE: Request for Further Review of Protest No. 3501-92-100231,
Dated August 17, 1992, concerning the Classification of a man's
upper and lower body garment; Heading 6211; Heading 6201; Heading
62030; Heading 9902
Dear Sir:
This ruling is in response to the protest that was filed by
Southern Trading Company on August 17, 1992, against your
decision concerning the classification of a man's upper and lower
body garment. A sample was submitted for examination.
FACTS:
The merchandise in question consist of a matching jacket
and pants. The jacket contains a 65% polyester/35% cotton mesh
lining in the torso area and a 100% nylon lining in the sleeves;
elasticized waistband; elasticized cuffs; a full front opening
with a metal zipper that extends to the top of the collar; two
side inserted pockets; and a patch on the collar that contains
the word "Rollerblade". The pants are comprised of a 100% nylon
lining; elasticized ankles; and a full zipper means of closure
located on each pant leg. Both the pants and the jacket have an
outer shell of 100 percent nylon material and an additional layer
of nylon textile material at the knee and elbow area of the
garment. The protestant describes this additional layer of
fabric as "heavy-duty luggage-type fabric", specially designed
for clothing worn for persons participating during in-line
skating. The protestant claims that this "heavy-duty" material
is used to protect the wearer against injury from falls and road
burns.
This protest concerns entries of the instant merchandise
entered under subheadings 6211.33.0035 and 6211.33.0030, of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), and liquidated under subheadings 6201.93.3510 and
6203.43.4010, HTSUSA. The protestant requests reliquidation
under Heading 9902, HTSUSA, or in the alternative, under Heading
6211, HTSUSA.
ISSUE:
Whether the merchandise in question is classifiable under
Heading 6211, HTSUSA, as a track suit, Heading 9902, HTSUSA, as
sports clothing, or as separates under Chapter 62, 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.
The merchandise in question is potentially classifiable
under competing provisions. The possibilities include
classification as a track suit under Heading 6211, HTSUSA,
classification as sports clothing under Heading 9902, HTSUSA, or
classification as separates under Chapter 62, HTSUSA.
The protestant states that the subject merchandise is
classifiable under subheading 9902.62.01, HTSUSA, as sports
clothing, however provided for in Chapters 61 and 62, HTSUSA.
U.S. Additional Note 12(a) to Chapter 99, HTSUSA, states, in
relevant part:
(1) The term "sports clothing" refers to:
* * *
(B) other articles of sports wearing apparel which
because of their padding, fabric, construction, or other
special features are specially designed to protect against
injury (e.g., from blows, falls, road burns or fire).
The protestant contends that the instant garments are
specifically designed for the sport of in-line skating and to
protect the wearer against injury from falls and roadburns. The
protestant refers to the heavy duty nylon canvas material located
at the elbows and knees of the jacket and pants as evidence of
the specially devised protective features.
After examining both the garments, Customs believes that the
canvas material is not substantial enough to protect the wearer
against the aforementioned injuries. Customs contacted numerous
retail sports stores to determine exactly what types of clothing
and accessories are used for in-line skating. In every instance,
Customs was informed that if an in-line skater desired to protect
him or herself from injury, they would generally wear separate
knee and elbow pads, and not merely lined upper and lower body
garments which contained canvas elbow and knee inserts. The
cited elbow and knee pads usually contain several layers of
padding, foam material, and an exterior layer of hard plastic.
When comparing this type of protective gear with a single layer
of nylon canvas material, it is apparent that the canvas material
is not sufficient for its stated purpose. Therefore, subheading
9902.62.01, HTSUSA, is not applicable to the subject garments.
The protestant further maintains that if the garments at
issue are not classifiable under subheading 9902.62.01, HTSUSA,
in the alternative, they are properly classifiable under Heading
6211, HTSUSA. Heading 6211, HTSUSA, provides for, inter alia,
track suits. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), although not legally binding,
are the official interpretation of the nomenclature 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.
In order to be properly classifiable under Heading 6211,
HTSUSA, as a track suit, Customs must conclude that based on
construction and design, such garments fit into a class or kind
of goods which are intended to be used exclusively or mainly for
athletic activities. There are various characteristics present
in the subject garments that would indicate that they are track
suits for tariff classification purposes. These attributes
include the elasticized waistband and cuffs, the shell fabric
which is commonly used in the construction of track suits, the
full-frontal opening in the jacket, and the loose-fit which
allows the wearer to have more freedom and mobility during
sporting activities.
In Headquarters Ruling Letter 087511, dated January 14,
1991, Customs classified a similar breathable lined woven jacket
and pants under Heading 6211, HTSUSA, as a track suit. Prior to
the issuance of HRL 087511, lined track suits were excluded from
Heading 6211, HTSUSA, on the basis of the EN to Heading 6112,
HTSUSA, (which applies, mutatis mutandis, to Heading 6211,
HTSUSA). In HRL 087511, Customs stated:
In applying the "knitted" EN to the "woven" heading, we
failed to take into account several physical differences
between the two construction types. A knit construction in
the outer shell of track suits is desirable because of the
fabric's ability to both breathe and wick way perspiration.
An inner liner of any material would not augment these
characteristics significantly, and would likely create an
atmosphere of undesirable warmth for the athletic wearer.
[I]t is our opinion that "necessary changes in points
of detail," from knitted track suits to woven, allows the
presence of a liner with the ability to both breathe and to
wick away perspiration. Track suits with a woven outer
shell and an inner lining capable of imparting the
characteristics enumerated above are therefore classifiable
in Heading 6211, HTSUSA, as track suits.
In your submission, you maintain that Customs should again
broaden the scope of the EN and allow for the use of
nonbreathable nylon linings in the construction of track suits.
You state that "there are a great number of reasons to add
linings to woven track suits and therefore, the inclusion of
linings should not have any bearing toward classification."
Customs agrees with this statement, in part. Granted, there are
numerous reasons to outfit a garment with a lining. However,
when examining a garment for tariff classification purposes,
Customs must examine and assess the entire garment, not merely a
portion of a garment. To not consider the entire garment
including the lining, when determining the proper tariff category
would bring about inaccurate results. Customs is cognizant of
the fact that there are many reasons for the inclusion of a
lining in a garment; but for use in track suits, we decided after
much consideration that "breathability and wickability" were
minimum prerequisites for classification under Heading 6211,
HTSUSA. Any additional utilitarian purposes for a lining will be
taken into consideration, so long as the lining is capable of
breathing and wicking away moisture. As nylon is a nonbreathable
fabric that is incapable of wicking away moisture, and the lining
in the pants and the jacket sleeves is solely comprised of this
synthetic material, these garments are unsuitable for use during
sporting activities.
Since the two aforementioned headings are not applicable to
the garments in question, the only alternative for tariff
classification purposes, is classification as separates under
Chapter 62, HTSUSA.
HOLDING:
Based on the foregoing, the jacket in question is
classifiable under subheading 6201.93.3510, HTSUSA, which is the
provision for men's or boys' windbreakers and similar articles.
The applicable rate of duty is 29.5 percent ad valorem and the
textile restraint category is 634. The pants at issue are
classifiable under subheading 6203.43.4010, HTSUSA, which is the
provision for men's or boys' trousers. The applicable rate of
duty is 29.7 percent ad valorem and the textile restraint
category is 647.
The protest should be denied. 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