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HQ 089849

August 16, 1991

CLA-2 CO:R:C:T 089849 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.40.1020; 6210.40.1035

Charise Graham
W.G. Carroll, Inc.
185 East Bay Street, Suite 204
Charleston, South Carolina 29402

RE: Boy's track suit; activewear; sporting activity; classifiable heading 6210, HTSUSA

Dear Ms. Graham:

This is in reference to your letter of June 4, 1991, requesting classification of a boy's track suit under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue, style no. 38982 and 38984, is a jacket and pants set for boys. Both garments have an outershell of woven nylon and an inner lining of 65 percent polyester, 35 percent cotton jersey knit fabric, except that the jacket sleeves are lined with woven nylon material. The jacket has a full front opening with a zipper closure and a stand-up collar. There are two side vent pockets, and the long sleeved cuffs and the waistband are elasticized. The pants also have an elasticized waistband and ankle cuffs; you state that this style will be imported in boys' sizes extra small (5-6), small (8), medium (10- 12) and large (14-16).

The garment components are matched as to size, marketed as a unit, and color coordinated. You state that the garments have been treated for water resistance with a 600 mm acrylic coating. A visual inspection of the outer shell fabric indicates that it is indeed coated on one side; further testing by the Customs laboratory confirms that the application of plastics material on the inner surface passes the water resistance test specified in chapter 62, Additional U.S. Note 2.

2

ISSUE:

Whether this garment is classifiable as children's playwear or sportswear.

LAW AND ANALYSIS:

Classification of merchandise under the tariff is in accordance with the General Rules of Interpretation, (GRI) taken in order. GRI 1 provides that classification will be determined by the terms of the heading, and any relevant section or chapter notes.

The merchandise at issue is potentially classifiable under four different headings in the tariff. The competing headings are heading 6211 (track suits), 6210 (garments made up of fabrics of heading 5903), 6204 (pants) and 6202 (jackets), HTSUSA.

Heading 6211 provides for track suits, ski-suits and swimwear. The Explanatory Notes (EN) at 62.11, apply, mutatis mutandis, the provisions of EN 61.12 to the articles of this heading. The Explanatory Notes constitute the official interpretation of the tariff at the international level, and state, in relevant part, that

(A) Track suits, i.e., knitted articles consisting of two pieces, not lined but sometimes with a raised inner surface (nap) 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 full inner lining of both pieces of this garment is made of 65 percent polyester and 35 percent cotton knit material. In HQ 087511, a track suit lined in substantial part (torso and upper trouser area) with 65 percent polyester/35 percent cotton lightweight jersey fabric was determined to perform the same function as an unlined track suit with a raised inner nap capable of breathing and wicking away perspiration. Thus, the presence of this type of lining in the garment at issue does not preclude classification as a track suit.

Next we consider whether the present garment, due to its general appearance and the nature of the fabric, is clearly meant to be worn exclusively or mainly in the pursuit of sporting activities. Inherent in this consideration is the question of what constitutes a sporting activity, and whether garments of this type for boys aged 6-14 are considered for use during sporting activity.

3

Subheading 6211.43 is a use provision. Consequently, the heading under which the subject merchandise will be classified will be controlled by the use in the United States at, or immediately prior to, the date of importation of goods of the class or kind to which the subject merchandise belongs. The controlling use is the principal use of this type of merchandise - the use which exceeds any other individual use in the United States. See, Additional U.S. Rule of Interpretation 1(a), HTSUSA.

The term "sporting activity" is not defined by the tariff. However, common dictionaries define the term "sport" as an activity requiring more or less vigorous bodily exertion and carried on according to some traditional form or set of rules, whether outdoors, as football, hunting, golf, racing, etc., or indoors, as basketball, bowling, squash, etc. We concur in this definition and conclude that boys aged 6-14 engage in sporting activity, or games which follow some traditional form. Thus, track suits, or warm up suits sized for this age range are considered garments primarily worn in pursuit of sporting activity.

We distinguish garments of similar design which are cut in toddler sizes, on the basis that children of that age group do not generally engage in sports activity; such garments are considered activewear or playwear, and are separately classifiable in upper and lower garment subdivisions.

Heading 6210 provides for garments made up of fabrics of heading 5907 (textile fabrics otherwise impregnated, coated or covered). Since the outer shell fabric of both pieces has been treated with an acrylic coating which is visible to the naked eye, this garment may be classified as a coated garment. Chapter Note 5 states that garments 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. Therefore, although headings 6202 (boys' jackets) and 6204 (boys' trousers) also apply prima facie to the merchandise at issue, the chapter note directs classification under heading 6210, thereby preventing classification of this garment as a track suit of heading 6211, HTSUSA.

HOLDING:

For the reasons stated above, the merchandise at issue is classified as follows: the jacket is provided for by subheading 6210.40.1020, HTSUSA, garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: other men's or boys' garments: of man-made fibers, other: anoraks (including ski-jackets), windbreakers and similar articles, textile category 634, dutiable at the rate of 7.6 percent ad valorem.

4

The trousers are provided for by subheading 6210.40.1035, HTSUSA, garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: other men's or boys' garments: of man-made fibers, other: trousers, breeches and shorts, textile category 647, dutiable at the rate of 7.6 percent ad valorem.

Due to the changeable nature of the statistical annotation 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 issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director
Commercial Rulings Division

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