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HQ 954295

September 17, 1993

CLA-2 CO:R:C:T 954295 jb


TARIFF NO.: 6201.93.3000; 6203.43.3500

District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island
San Pedro, CA 90731

RE: Decision on Application for Further Review of Protest No.2704-93-100778; water resistant garments are not track suits; proper classification in heading 6201, HTSUSA and heading 6203, HTSUSA

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Shipton Sportswear Co., on March 3, 1993, against your decision regarding the classification of jacket and trousers sets. All entries were liquidated on December 4, 1992 and December 28, 1992. Samples were submitted to this office for examination.


The merchandise in question consists of two styles of multi- purpose windsuits, each style comprised of matching jacket and trousers. Both styles have a shell fabric composed of a woven 100 percent nylon fabric and a lining of jersey knit 65 percent polyester/35 percent cotton fabric.

Both styles have the following features:

1. the jacket has a zip front, side pockets and elastic waist

2. the trousers have an elastic waist including draw string, side pockets, elastic cuffs and zippered ankle openings.

Other than color/pattern design, the only difference between the styles is that the collar on one set of jackets, in addition to the frontal zip-up, also features a threaded draw string to secure neck coverage.

The garments are described by the importer as "water resistant"; a fact which was verified by Customs laboratory testing in Los Angeles.

These garments were classified and liquidated in subheadings 6211.33.0035 and 6211.33.0030, HTSUSA, which provide for track suits. The importer contends that the garments are neither designed nor intended to be worn in the pursuit of running or jogging activity, as would be the utility of track suits, and that the garments should be classified in subheadings 6201.93.3000 and 6203.43.3500, HTSUSA, which provide for water resistant separates.


Whether the garments in question are properly classified as track suits in heading 6211, HTSUSA, or whether they are classifiable as water resistant separates in the appropriate headings in chapter 62, HTSUSA?


Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 6211, HTSUSA, provides 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. These garments, 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 EN further state that the trouser component of the track suit cannot contain an opening at the waist (i.e., no buttons or other fastening system).

Customs is cognizant of the fact that recent trends have produced garments that have the basic construction of track suits, as described by the EN, but also feature various types of fashionable additions. Customs has thus taken the position that whether the garments are precluded from a track suit classification will depend on individual examinations of the garments and a determination as to whether the embellishments render then unsuitable for use during sporting activities.

The instant garments exhibit the general characteristics of track suits, i.e., in general, a shell fabric commonly used in the construction of track suits, and specifically, on the trousers, elasticized waistband and cuffs and drawstring closure, and on the jackets, a zippered closure capable of total torso coverage. In all, the track suits do not feature any embellishments traditionally unrelated to sports.

As was verified by the Los Angeles Customs laboratory, the subject garments are water resistant. Additional U.S. Note 2, to 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.

In classifying these garments there are thus two competing provisions. The garments have the general appearance and characteristics of track suits, as specifically provided for in heading 6211, HTSUSA, however, the garments also meet the water resistant test for separates, as provided for in the subheading level of chapter 62, HTSUSA.

In the past Customs has discerned between these two provisions by determining which of the two competing provisions most specifically provides for the garment (See, HQ 953006, dated July 21, 1993 and HQ 954214, dated September 2, 1993). In the instant case, as in the above mentioned rulings, it is important to note that even when the garments have the general appearance and characteristics of track suits, they must also be suitable for use during sporting activities. The coating added to the surface of the garments does not allow the garments to breathe and wick away moisture during sporting activities. This renders the garments unsuitable, as by definition, as track suits. Accordingly, the water resistant garments in question are classifiable in the appropriate headings as separates in chapter 62, HTSUSA.


Based on the foregoing, the subject men's jackets and trousers were improperly classified in heading 6211, HTSUSA. The proper classification for the jacket is subheading 6201.93.3000, HTSUSA, which provides for men's water resistant windbreakers and similar articles, of synthetic fibers. The applicable rate of duty is 7.6 percent ad valorem and the textile quota category is 634. The trousers are classifiable in subheading 6203.43.3500, HTSUSA, which provides for men's water resistant trousers, of synthetic fibers. The applicable rate of duty is 7.6 percent ad valorem and the textile quota category is 647.

The protest should be granted in full and a copy of this ruling should be appended to the Form 19 Notice of Action and furnished to the Protestant.


John Durant, Director

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