HQ 087511: HRL 084736 revoked. Track suits with a woven outer shelland an inner lining capable of imparting ability to breathe andwick away perspiration are track suits.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                               HQ 087511

                           January 14, 1991




CLA-2 CO:R:C:G  087511  HP

CATEGORY:  Classification

TARIFF NO.:  6211.33.0030; 6211.33.0035; 6211.43.0040;
6211.43.0050

Mr. William J. Maloney
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, NY 10017

RE:  HRL 084736 revoked.  Track suits with a woven outer shell
and an inner lining capable of imparting ability to breathe and
wick away perspiration are track suits.

Dear Mr. Maloney:

     This is in reply to your letter of July 10, 1990,
concerning the tariff classification of woven lined track suits,
produced in either Malaysia, China, or Hong Kong, under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).  Please reference your clients Odyssey International
Ltd. and Odyssey USA Inc.

FACTS:

      The merchandise at issue consists of three samples of track
suits: DB-238WMP (women's), BC-345WMP (men's), and BC366WMP
(men's).  Each of the track suits consists of two coordinated
pieces: a jacket which covers the upper part of the body and
trousers to cover the lower part of the body.  The outer shell of
each garment is 100% woven nylon.  The body lining of the jacket,
and the upper lining of the trousers, is 65% polyester / 35%
cotton lightweight jersey knit fabric.  The sleeve lining in the
jacket, and the lower lining of the trousers, is of 100% woven
nylon fabric.

      Each jacket has a full front zippered opening, long sleeves
with elasticized cuffs, a stand-up collar, and partly elasticized
waist.  Each pair of trousers has an elasticized waist with
drawstring, and features an 8 inch zipper on the outside seam of
the bottom of each leg.  The two men's styles have a zippered
rear pocket.

      You state that

          [t]he outer shell material of these garments
          provides significant wind and water
          resistance; this wind and water resistance is
          imparted by the tight weave of the fabric
          rather than by an application of plastics.

                                 * * *

          The track suits are designed to be worn by
          person's [sic.] engaged in various sporting
          or exercise activities and are sold and used
          accordingly.

ISSUE:

      Whether the presence of an inner lining precludes
classification of the instant merchandise as track suits under
heading 6211, HTSUSA?

LAW AND ANALYSIS:

      Heading 6211, HTSUSA, provides for, inter alia, woven track
suits.  In HRL 084736 of June 13, 1989, we stated that

               Explanatory Note 62.11 states that
               the "provisions of the
               Explanatory Note to heading 61.12
               concerning track suits [apply], ...
               mutatis mutandis, to the terms of
               this heading."  Explanatory Note
               61.12 provides, in pertinent part:

                    (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.
                    [Emphasis in HRL 084736.]

           As a result, classification of [lined track suits]
under Heading 6211, HTSUSA, is incorrect.

      The Explanatory Notes (EN) to the HTSUSA constitute the
official interpretation of the tariff at the international level.

While not legally binding, they do represent the considered views
of classification experts of the Harmonized System Committee.  In
the absence of clear and unambiguous statutory language to the
contrary, it has been the practice of the Customs Service to
follow, whenever possible, the terms of the Explanatory Notes
when interpreting the HTSUSA.  Nevertheless, it has been
suggested that our extension to and application of heading 6112's
Explanatory Note to heading 6212 was flawed.  We agree.

      As we stated above, the "provisions of the Explanatory Note
to heading 61.12 [(knitted or crocheted)] concerning track suits
[apply], ... mutatis mutandis, to the to the terms of this
heading [(woven)]."  Mutatis mutandis is defined by Black's Law
Dictionary (West 1979), as "[w]ith the necessary changes in
points of detail, meaning that matters or things are generally
the same, but to be altered when necessary...."  The Compact
Edition of the Oxford English Dictionary (Oxford 1987) continues
with "[t]hings being changed that have to be changed, i.e. with
the necessary changes...."

      In applying the "knitted" EN to the "woven" heading, we
failed to take into account several physical differences between
the two construction types.  A knit construction in the outer
shell of track suits is desirable because of the fabric's ability
to both "breathe" and to wick away perspiration.  An inner liner
of any material would not augment these characteristics
significantly, and would likely create an atmosphere of
undesirable warmth for the athletic wearer.

      Contrarily, woven outer shells of track suits do not solely
impart the aforementioned characteristics.  It is our opinion
that "necessary changes in points of detail," from knitted track
suits to woven, allow the presence of a liner with the ability to
both breathe and to wick away perspiration.  Track suits with a
woven outer shell and an inner lining capable of imparting the
characteristics enumerated above are therefore classifiable in
heading 6211, HTSUSA, as track suits.  HRL 084736 of June 13,
1989, and any other rulings not in agreement with this opinion,
are hereby revoked.

HOLDING:

      As a result of the foregoing, the instant merchandise is
classified as follows:

      Styles BC-345WMP & BC-366WMP

           Jackets

                under subheading 6211.33.0035, HTSUSA, textile
                category 634, as track suits, ski-suits and
                swimwear; other garments, other garments, men's
              or boys', of man-made fibers, track suits, other.
                The applicable rate of duty is 17 percent ad
                valorem.

           Trousers

                under subheading 6211.33.0030, HTSUSA, textile
                category 647, as track suits, ski-suits and
                swimwear; other garments, other garments, men's
                or boys', of man-made fibers, track suits,
               trousers.  The applicable rate of duty is 17
               percent ad valorem.

      Style DB-238WMP

           Jacket

                under subheading 6211.43.0050, HTSUSA, textile
                category 635, as track suits, ski-suits and
                swimwear; other garments, other garments, women's
                or girls', of man-made fibers, track suits,
               other. The applicable rate of duty is 17 percent
               ad valorem.

           Trousers

                under subheading 6211.43.0040, HTSUSA, textile
                category 648, as track suits, ski-suits and
                swimwear; other garments, other garments, women's
                or girls', of man-made fibers, track suits,
                trousers.  The applicable rate of duty is 17
                percent ad valorem.

      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 negotiations 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 updated weekly and is
available at your local Customs office.

      Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.


                              Sincerely,





                         John Durant, Director
                      Commercial Rulings Division