HQ 089146: Children's track suit-like garments are not track suitsabsent evidence that they are intended for use primarily injogging or running.

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 089146

                        September 3, 1991

CLA-2 CO:R:C:T  089146  HP

CATEGORY:  Classification

TARIFF NO.:  6201.93.3520; 6203.43.4020

Mr. Steven M. Kott
Manager
Foreign Merchandise Services
Kmart Fashions
7373 West Side Avenue
North Bergen, NJ 07047

RE:  Children's track suit-like garments are not track suits
absent evidence that they are intended for use primarily in
jogging or running.

Dear Mr. Kott:

     This is in reply to your letter of April 3, 1991.  That
letter concerned the tariff classification, under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), of boys'
wind sets, produced in Taiwan.

FACTS:

     The merchandise at issue consists of a set of garments for
boys, Style 9327, ranging in sizes from 8-14.  The set consists
of a jacket and pants in coordinating, not identical, colors. 
Both garments have an outer shell made from Trilobal 210T woven
nylon fabric, and a knit jersey lining which appears to be either
cotton or a blend containing cotton.  The jacket, which is of
pieced construction and features a variety of colored fabric
inserts and rows of parallel contrasting stitching, has a full
front opening with a zip through collar, slant pockets at the
waist, a partially elasticized waistband, elasticized cuffs, and
a small covered snap pocket on the left front (near the zipper
opening).  The trousers have a fully elasticized waist and cuffs,
no drawstring at the waist, unsecured slant, side-seam pockets,
and partial zippers at the cuffs.  They feature small decorative
rows of contrasting stitching along the sides.

ISSUE:

     Whether the garments can be considered a track suit under
the HTSUSA?

LAW AND ANALYSIS:

     Heading 6211, HTSUSA, provides for woven track suits.  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.  It
has therefore been the practice of the Customs Service to follow,
whenever possible, the terms of the Explanatory Notes when
interpreting the HTSUSA.

     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. 


     In HRL 087511 of January 14, 1991, we stated:

               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.

Accordingly, the lining of the garments in question is acceptable
for purposes of classification in heading 6211, HTSUSA.

     In HRL 089321 of August 19, 1991, we classified boys'
athletic-style garments imported in sizes 8-20.  Therein, we
stated:

               In ... HRL 088569, dated May 31, 1991,
          it was held that only garments which are
          commonly and commercially known as "track
          suits" are classifiable as track suits. 
          These are garments which are usually
          associated in some manner with running or
          jogging.

               In this instance, ... we do not believe
          that the instant merchandise is classifiable
          as track suits.  We note that 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, etc., and are virtually
          indistinguishable in appearance from real
          warm-up and track suits.  Since track suits
          are required to be intended to be worn
          exclusively or mainly for sporting activities
          (related to running and jogging), garments
          which are not intended for those type
          activities will most likely be worn for
          leisure and non[-]running and non[-]jogging
          activities.

               Accordingly, when sets of garments are
          stated to be track suits, but appear to
          Customs to be leisure or multipurpose
          garments, evidence should be presented to the
          Customs classifying officer sufficient to
          establish the fact the merchandise in
          question is intended to be worn during
          running or jogging activities.  In the
          absence of such evidence, Customs may
          classify such garments under provisions other
          than those which provide for track suits.

     With regard to the sample garments, no evidence was
submitted that the garments are intended to be used during
running or jogging.  It is clear that they will be used for wind
protection in every day wear.  Style 9327 is therefore not
classifiable as a track suit.

HOLDING:

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

Jacket

     ... under subheading 6201.93.3520, HTSUSA, textile category
     634, as men's or boys' overcoats, carcoats, capes, cloaks,
     anoraks (including ski-jackets), windbreakers and similar
     articles (including padded, sleeveless jackets), other than
     those of heading 6203, anoraks (including ski-jackets),
     windbreakers and similar articles (including padded,
     sleeveless jackets), of man-made fibers, other, other,
     other, other, boys'.  The applicable rate of duty is 29.5
     percent ad valorem.

Trousers

     ... under subheading 6203.43.4020, HTSUSA, textile category
     647, as men's or boys' suits, ensembles, suit-type jackets,
     blazers, 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, boys,
     other.  The applicable rate of duty is 29.7 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.

     A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported.  If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.


                           Sincerely,




                      John Durant, Director
                   Commercial Rulings Division