Request for Further Review of Protest No. 1001-91-108845,dated December 17, 1991, concerning the classification of men'supper and lower body garments

HQ 951637 July 22, 1993 CLA-2 CO:R:C:T 951637 CAB CATEGORY: Classification TARIFF NO.: 6203.43.3500; 6201.93.3000 Regional Commissioner U.S. Customs Service c/o Protest and Control Section 6 World Trade Center Room 762 New York, NY 10048-0945 RE: Request for Further Review of Protest No. 1001-91-108845, dated December 17, 1991, concerning the classification of men's upper and lower body garments Dear Sir: This ruling is in response to the protest that was filed on behalf of E.S. Originals, Inc., by Grunfeld, Desiderio, Lebowitz & Silverman, against your decision concerning the tariff classification of men's upper and lower body garments. Samples were submitted for examination. FACTS: The merchandise in question, Styles 40637, 49015, and 49611, are described as men's jackets and pants constructed of 100 percent nylon shell fabric. The jackets at issue contain elasticized waistbands and cuffs, a zippered full frontal opening, and linings made of 65 percent polyester/35 percent cotton material. The jacket of Styles 40637 and 49611 have a mock-turtle neck collar with a drawstring tightening. Style 49015 has a hood with a drawstring means of closure. The pants at issue feature side pockets, elasticized waist and ankle cuffs, a drawstring for tightening, and a rear patch pocket with a Velcro closure. All of the subject garments have been coated with 600 millimeters of polyurethane. The jackets were entered at JFK Airport under subheading 6201.93.3000, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which is the provision for men's or boys' water resistant windbreakers and similar articles. The pants were entered at JFK Airport under subheading 6203.43.3500, HTSUSA, which is the provision for men's or boys' water resistant trousers. The pants were liquidated under subheading 6211.33.0030, HTSUSA, which provides for track suit trousers. The jackets were liquidated under subheading 6211.33.0035, HTSUSA, which provides for the jacket component of a track suit. The protestant contends that the polyurethane coating renders the subject garments water resistant. The protestant further asserts that as a result of the additional coating, the garments are unsuitable for use during sporting activities. ISSUE: Whether the merchandise in question is properly classifiable as a track suit under Heading 6211, HTSUSA, or as water resistant 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. 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. As a result of the fashion trend which has developed in recent years to wear garments which are designed and intended for use in sporting activities as leisurewear garments, Customs has had the formidable task of determining the proper tariff classification for these garments. In prior instances, where Customs had a question as to the principle use of a track suit type garment, Customs required additional evidence to substantiate the claim that the garment would be utilized "exclusively or mainly" during sporting activities. Customs is 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 substantiate his tariff classification claim. After further review, it is now our position that as long as Customs can conclude that because of 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, the garments will be classified under Heading 6211, HTSUSA. The instant garments contain the general characteristics of a track suit. These characteristics include the elasticized waistband and cuffs, drawstring waist, a lightweight jersey knit lining that breathes and wicks away moisture, shell fabric which is commonly used in the construction of track suits, and a loose- fit which improves mobility. As stated above, you assert that the articles in question are coated with 600 millimeters of polyurethane, which renders the garments water resistant for tariff classification purposes. You further maintain that the garments are properly classifiable as separates under the water resistant category 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. When classifying garments such as the articles in question, Customs realizes that the items are potentially classifiable under competing provisions. The garments have the general appearance and characteristics of a track suit, which is specifically provided for under Heading 6211, HTSUSA. However, the garments also meet the water resistant test for separates provided at the subheading level of Chapter 62, HTSUSA. In prior rulings when classifying similar garments, Customs consistently classified them under Heading 6211, HTSUSA. The decision to classify the garments under Heading 6211, HTSUSA, was premised on the fact that the garments were more specifically provided for under Heading 6211, HTSUSA instead of Heading 6201, HTSUSA, which provides for men's jackets and Heading 6203, HTSUSA, which provides for men's pants. It is important to note that the instant garments have the general appearance and construction of a track suit. However, to be properly classifiable under Heading 6211, HTSUSA, the subject garments must also be suitable for use during sporting activities. In this case, the extensive coating added to the surface of the garments does not allow the garments to breathe and wick away moisture during sporting activities. Therefore, the water resistant articles in question are not suitable for use in sporting activities and are classifiable under the applicable water resistant subheadings of Chapter 62, HTSUSA. HOLDING: Based on the foregoing, the jacket at issue is properly classifiable under subheading 6201.93.3000, HTSUSA, which provides 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 properly 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 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