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HQ 955519

April 15, 1994

CLA-2 CO:R:C:T 955519 CMR


TARIFF NO: 6201.93.3510, 6203.43.4010

District Director
U.S. Customs Service
4430 E. Adamo
Suit 301
Tampa, Fla. 33605

RE: Application for Further Review of Protests Nos. 1803-92-100022 and 1803-93-100011; Requirement for AFR met at time filed

Dear Ms. Zwicker:

This is in response to the above cited protests, filed by Gibney, Anthony & Flaherty, on behalf of their client, against the classification by the Area Port Director, Jacksonville, Florida, of certain merchandise as jackets and pants as opposed to as track suits. Although protestant received two pre- classification rulings on the subject merchandise prior to importation, protestant has met the requirements under 19 CFR 174.24(c). This provision provides that a protestant shall be accorded further review when the decision against which the protest is filed:

Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

Protestant has submitted legal arguments not addressed in any previous Customs rulings regarding the classification of this or similar merchandise. A sample of the merchandise at issue was submitted.


The jacket of style 2204 is constructed of a 100 percent nylon woven fabric outershell, a 65 percent polyester/35 percent cotton knit jersey fabric lining in the body of the garment, and a 100 percent nylon woven fabric lining in the arms. The garment -2-
features long sleeves with elasticized cuffs, a 2-1/2 inch wide elasticized waistband, a full frontal opening secured by a zipper closure which extends to the end of the collar, a stand-up collar, and two front pockets at the waist.

The pants of style 2204 are constructed of a 100 percent nylon woven fabric outershell, a 65 percent polyester/35 percent cotton knit jersey fabric lining for the torso portion of the pants extending slightly down the legs portion, and a 100 percent nylon woven fabric lining the remaining legs portion of the pants. The pants feature an elasticized waistband with an enclosed drawstring for tightening, a zippered fly that does not extend through the waistband, and elasticized ankle cuffs with side zippers which extend about 9 inches up the outside of the legs.

The jacket and pants are color coordinated and each feature matching embroidered logos of a major league sports franchise.

Style 2204 was the subject of two pre-classification ruling letters--PC 868293 of November 26, 1991, and PC 873396 of May 4, 1992. PC 868293 (1991) indicated the classification for the jacket and pants of style 2204 as track suits components in subheadings 6211.33.0030, HTSUSA, and 6211.33.0035, HTSUSA, respectively (subject to duty at 17 percent ad valorem); but, further indicated if imported separately, the classifications would be subheadings 6201.93.3000, HTSUSA, and 6203.43.3500, HTSUSA, respectively, as water resistant garments (subject to duty at 7.6 percent ad valorem). In PC 873396 (1992), classification for the jacket and pants of style 2204 is given as subheadings 6201.93.3000, HTSUSA, and 6203.43.3500, HTSUSA, respectively. This pre-classification ruling indicates that the garments are imported separately.

The garments at issue were entered as separates in the provision for water resistant garments, i.e, the jackets in subheading 6201.93.3000, HTSUSA, and the pants in subheading 6203.43.3500, HTSUSA. The garments were entered in four separate entries spanning a time period of approximately six weeks. Three entries are the subject of protest #1803-92-100022, and one entry is the subject of protest #1803-92-100011. Two entries contained only jackets, style 2204J; one entry contained only pants, style 2204P; and one entry contained an uneven number of jackets and pants, style 2204J (200) and style 2204P (1576).

The jackets and pants were liquidated as classified, in subheading 6201.93.3510, HTSUSA, dutiable at 29.5 percent ad valorem for the jackets, and in subheading 6203.43.4010, HTSUSA, dutiable at 29.7 percent ad valorem for the pants. Customs personnel determined the garments did not meet the water resistance requirements of Additional U.S. Note 2, Chapter 62, HTSUSA. -3-


Are the jackets and pants of style 2204, entered in separate shipments over a six week time span, classifiable as track suits of heading 6211, HTSUSA?

Are the jackets and pants of style 2204, entered separately, classifiable as track suits of heading 6211 by application of General Rule of Interpretation 2?


As to the first issue, Customs has already addressed this issue in Headquarters Ruling Letter (HRL) 954270 of August 17, 1993, addressed to Gibney, Anthony & Flaherty. Although the ruling was issued to the firm on behalf of a different client, counsel for protestant should be aware of this decision and already have a copy. We are enclosing a copy, however, for your reference.

HRL 954270 succinctly states Customs position in regard to the classification of track suit components shipped separately on different vessels, i.e., they are not classifiable as track suits, but are classified as separates--jackets or pants. As Customs has addressed this matter and the protestant does not raise any new legal arguments which have not already been addressed in HRL 954270, we will not entertain this issue further.

The protestant does raise a matter not previously addressed, i.e., whether by application of General Rule of Interpretation (GRI) 2, the components of a track suit may be classified as track suits based upon an analysis that they are "incomplete or unfinished".

GRI 2 provides, in pertinent part:

(a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or failing to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

The Explanatory Notes to the Harmonized Commodity Description and Coding System, recognized as the official interpretation of the tariff at the international level, defines track suits at 61.12 (the Explanatory Notes of heading 6112 apply mutatis mutandis, to heading 6211). -4-

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.

Track suits consist of two garments, namely:

- A garment meant to cover the upper part of the body down to or slightly below the waist. It has long sleeves, with ribbed or elasticized bands, zip fasteners or other tightening elements at the cuffs. Similar tightening elements, including drawstrings, are generally to be found at the bottom of this garment. When it has a partial or complete opening at the front, it is generally fastened by means of a slide fastener (zipper). It may or may not be fitted with a hood, a collar and pockets.

- A second garment (a pair of trousers) which may be either close or loose fitting, with or without pockets, with an elasticated waistband, drawstring or other means of tightening at the waist, with no opening at the waist and therefore no buttons or other fastening system. However, such trousers may be fitted with ribbed or elasticated bands, slide fasteners (zippers) or other tightening elements at the bottom of the trouser-legs which generally go down to ankle level. They may or may not have footstraps.

The definition of track suits consistently refers to two garments. Protestant would have us view the single components, i.e., the jackets and pants of style 2204, as "incomplete or unfinished" track suits and by application of GRI 2(a), classify these garments as track suits.

While the jackets and pants, if presented together at the time of importation, would meet the above cited definition of track suits, a track suit, by definition, consists of two garments. The argument that the jackets and pants should be viewed as "incomplete or unfinished" track suits when presented separately at the time of importation is without merit. GRI 2(a) states that the incomplete or unfinished article must have the essential character of the complete or finished article. As track suits by definition consist of two garments, one garment cannot have the essential character of a track suit. In fact, in regard to the individual components, the jacket has the essential character of a jacket, and the pants have the essential character of pants. It is only when they are combined that they may possess the essential character of a track suit.

As to protestants specificity argument under GRI 3(a), we believe it is sufficient to state that failure to meet the definition of a track suit precludes classification as such in heading 6211, and therefore, classification of the jackets in heading 6201, as anoraks, windbreakers or similar articles, and of the trousers in heading 6203 as trousers, are the most specific headings among those which merit consideration.

In regard to the one entry which contained an uneven number of jackets and pants (200 jackets, 1576 pants), we would not agree that allowance should be made for classification of 200 tracksuits by matching the jackets with appropriate pants in this shipment. This view is based upon the fact that the importer received two pre-classification rulings indicating classification of the merchandise imported separately, and the merchandise was then indeed entered as separates. The earlier of the two rulings, PC 868293 of November 26, 1991, does indicate a classification for the goods imported together, but notes a classification for separate importation.

Customs Service Decision 92-11, cited by protestant's counsel, dealt with track suits in which equal numbers of jackets and pants were separately packaged on the same ship and entered on the same entry. In such a situation, the decision stated that in absence of evidence to the contrary, Customs would look to the bona fide intent of the importer in regard to the manner of sale of the garments, i.e., as separates or as a set. This decision merely attempted to ascertain the true "condition as imported" of the merchandise at issue therein. It did not, by any means, eliminate the principal of classification based upon condition as imported.

In this situation, while protestant maintains that style 2204 was ordered, purchased and sold as a set, i.e., a track suit, and has submitted documentation to that effect, it is our view that the importer was well aware of the significance of the "condition as imported" of the merchandise. As evidenced by protestant's counsel's submissions, 9845 jackets and 11761 pants were shipped. That is a difference of 1916 garments. Of the four entries at issue, only one contained jackets and pants and in vastly unequal numbers.


Based upon the manner of entry of these garments and the pre-classification rulings on style 2204, imported separately, the protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 which is returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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