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HQ 962039




April 11, 2000

CLA-2 RR:CR:TE 962039 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6202.93.5011; 6204.63.3510

John J. Martuge, Area Director
JFK International Airport
Building 77
Jamaica, NY 11430

RE: I.A. 18/98; Classification of Upper and Lower Body Garments; Women’s Anoraks, Windbreakers and Similar Articles; Heading 6202, HTSUSA; Women’s Trousers; Heading 6204, HTSUSA; Separates; Embellishments; Studs; Imitation Gemstones; Not Track Suit; Not Heading 6211, HTSUSA

Dear Area Director Martuge:

This ruling is in response to your letter dated June 25, 1998, requesting Internal Advice regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of two styles of items claimed to be track suits manufactured in Hong Kong. A sample of one style was forwarded for examination. The Request for Internal Advice was initiated by Ross & Hardies, on behalf of The Rousso Apparel Group, Inc. (“Importer”).

FACTS:

On December 5th and 12th, 1997, entries were filed at JFK Airport for merchandise imported by The Rousso Apparel Group, Inc. At entry the merchandise was classified under subheading 6211.43.0040 and 6211.43.0050, HTSUSA as track suits. Upon examination, Customs proposed to reclassify the merchandise separately under subheadings 6202.93.5011 and 6204.63.3510, HTSUSA. The Port took the position that the presence of metal studs and plastic imitation gemstones on the flaps of the chest pockets and collar of the jacket precluded the use of the garment in athletic activities. The Importer believed that position to be inconsistent with rulings of this Headquarters. This Request for Internal Advice ensued.

The merchandise in question consists of two styles of pants with matching jackets, identified by style numbers 63280 and 63280c. The two styles are identical; the Importer states that the “c” represents a particular customer. The submitted sample, style number 63280, consists of a jacket and pants constructed of an outer shell of 100 percent woven polyester and a knit lining made of 65 percent polyester/35 percent cotton. The jacket contains a full frontal opening with a zipper closure which extends to the top of the collar, elasticized waistband and cuffs, slant pockets at the waist, flap pockets with a snap closure at the chest and detachable shoulder pads. The jacket component is very decorative is also adorned with a series of one hundred forty two (142) round gold-colored metal studs and plastic imitation gemstones. There are fourteen (14) metal studs measuring 3/8 inch in diameter on each front shoulder/chest panel. Each chest pocket flap is covered with seven (7) metal studs measuring 3/8 inch in diameter, thirty (30) metal studs measuring 1/4 inch in diameter, four (4) plastic imitation gemstones measuring 1/4 inch in diameter and one (1) plastic imitation gemstone measuring 5/8 inch in diameter. The interior of each side of the collar is adorned with three (3) metal studs measuring 3/8 inch in diameter, ten (10) metal studs measuring 1/4 inch in diameter and two (2) plastic imitation gemstones measuring 1/4 inch in diameter. The pants have an elasticized waistband with a drawstring means of closure, side seam pockets, and a vertical zippered opening extending up each leg approximately six (6) inches.

ISSUES:

Whether the garments in question qualify as a track suit classifiable under Heading 6211, 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 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.

Heading 6211, HTSUSA, specifically provides for track suits. The EN to heading 6112, HTSUSA, which apply, mutatis mutandis, to the articles of 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. The upper body garment typically extends down to or slightly below the waist, has long sleeves with elasticized bands, tightening elements at the bottom of the garment, a zippered opening and may be fitted with a collar. The lower body garment is typically loose fitting and has pockets, a means of tightening at the waist and tightening elements at the bottom the trouser-leg. The EN to heading 6211, HTSUSA, state that track suits of the heading may be lined.

As a result of the fashion trend which developed in the early 1990's to wear garments which are designed and intended for use in sporting activities, as leisurewear garments, Customs has 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” for sporting activities. However, Customs later took the position that requesting evidence of use for track suit type garments was 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.

Since that time, Customs has taken the 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 are classified under heading 6211, HTSUSA, as track suits. See Headquarters Ruling Letter (HQ) 950378, dated April 22, 1993. Customs has stated that only garments which are commonly and commercially known as “track suits” are classifiable as “track suits” and that “track suits” are garments which are usually associated in some manner with athletic activities. See HQ 088569, dated May 31, 1991; HQ 089770, dated August 23, 1991; HQ 950203, dated November 23, 1991; and HQ 950378 (cited above). In HQ 950378 (cited above), Customs classified garments with shoulder pads, metallic yarn and multicolored thread embroidery, metallic braided piping, beads, and textile and plastic overlays as a track suit under heading 6211, HTSUSA. Customs stated that except for the shoulder pads and decorative additions to the jacket, the garments clearly fell within the class of goods commonly and commercially called track suits, jogging suits or walking suits, athletic suits, etc. Customs then concluded that the shoulder pads did not inhibit the use of the garments for athletic purposes and that the decorative additions to the jackets were not present in sufficient quantity to detract from their usefulness in athletics. Accordingly, the garments were found to be of a class or kind of goods which were intended to be used exclusively or mainly for athletic activity.

Similarly, except for the shoulder pads and decorative additions to the subject jacket, the garments at issue generally meet the criteria of a track suit. The garments have an elasticized waistband and cuffs, drawstring waist, a lightweight lining that breathes and wicks away moisture, shell fabric which is commonly used in the construction of track suits, a loosefit which improves mobility, and a zippered closure on the jacket component that is capable of total torso coverage. However, the jacket has been outfitted with studs and imitation gemstones on both the interior and exterior surfaces. This type of adornment is not associated with garments intended for use in sporting endeavors. Thus we must determine whether or not the subject garments meet the Explanatory Note definition of being used mainly for athletic activity based on general appearance and nature of the fabric.

In contrast to HQ 950378 (cited above), the decorative embellishments on the subject garments are present in sufficient quantity to detract from their usefulness in athletics and inhibit the use of the garments for athletic purposes. The embellishments hamper a wearer’s comfort during rigorous movement. The embellishments are located on the interior collar of the jacket and are heavily concentrated on the chest flap pocket. We note that the collar is designed to be worn turned up when the jacket is fully zipped. A great majority of track suits have zip-through collars because they provide protection to the throat and upper chest during athletic activity. When perspiration accrues on the skin in cold weather, there is a rapid chilling effect in this area such that the stand up collar with the zipper is almost always employed by designers of track suits. The placement of gemstones and studs on the collar facing the skin has made the use of the stand-up collar impractical during athletic activity. The contact of the embellishments with the face and neck would result in a detriment to comfort. Furthermore, if the zipper were worn not fully closed the collar would likely flap from the weight of the embellishments, creating even more discomfort. Additionally, we note that the weight of the instant jacket, with its 142 gemstones and metal studs, is significantly heavier than other traditional track suit jackets. With the presence of the embellishments on the jacket, the wearer is not able to participate in running and jogging events with ease. The attached embellishments render the subject garments unlikely to be worn exclusively or mainly for sporting activities. Accordingly, the garments fail to meet the EN definition of track suits for classification purposes. Based on the general appearance and nature of the fabric the present garments do not belong to a class of goods which are intended to be used mainly for athletic purposes and are thus excluded from heading 6211, HTSUSA.

Additionally, we note that quantifying the EN term “mainly” in a practical sense poses some difficulties. We are asked to determine if the main use of the articles at issue is for the pursuit of sporting activities. This office recognizes that garments such as these have several uses in that they are used as sportswear and they are increasingly being used as leisurewear. Due to fashion changes, many all-purpose and leisure-type garments are styled to resemble warm-up and track suits. These garments can be seen being worn in grocery stores, on golf courses, in shopping malls, etc. and are similar in appearance to real warm-up and track suits. Since track suits are required to be intended to be worn exclusively or mainly for sporting activities, garments which are not intended for those type of activities will most likely be worn for leisure and non-sporting activities. The design of the subject merchandise is such that they are comfortable, presentable and now commonly acceptable for use when walking, relaxing, shopping, etc. Considering the overall presentation of the two subject garments, we find that they will be routinely worn as every day clothing and will not be mainly used for sports activity.

HOLDING:

Based on the foregoing, the subject jacket is classifiable under subheading 6202.93.5011, HTSUSA, which is the provision for women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including skijackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6204: Anoraks (including ski-jackets), wind-breakers and similar articles (including padded, sleeveless jackets): of man-made fibers: Other: Other: Other: Other, Women’s. The applicable rate of duty in 1998 was 28.8 percent ad valorem and the textile restraint category is 635.

The pants are classifiable under subheading 6204.63.3510, HTSUSA, which is the provision for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of synthetic fibers: other: other: other: other: other: trousers and breeches: women’s. The applicable rate of duty in 1998 was 29.7 percent ad valorem and the textile restraint category is 648.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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