HQ 951637: Request for Further Review of Protest No. 1001-91-108845,dated December 17, 1991, concerning the classification of men'supper and lower body garments

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 951637

                          July 22, 1993

CLA-2  CO:R:C:T 951637 CAB

CATEGORY:  Classification

TARIFF NO.:  6203.43.3500; 6201.93.3000

Regional Commissioner
U.S. Customs Service
c/o Protest and Control Section
6 World Trade Center
Room 762
New York, NY 10048-0945

RE:  Request for Further Review of Protest No. 1001-91-108845,
dated December 17, 1991, concerning the classification of men's
upper and lower body garments

Dear Sir:

     This ruling is in response to the protest that was filed on
behalf of E.S. Originals, Inc., by Grunfeld, Desiderio, Lebowitz
& Silverman, against your decision concerning the tariff
classification of men's upper and lower body garments.  Samples
were submitted for examination.  

FACTS:

     The merchandise in question, Styles 40637, 49015, and 49611,
are described as men's jackets and pants constructed of 100
percent nylon shell fabric.  The jackets at issue contain
elasticized waistbands and cuffs, a zippered full frontal
opening, and linings made of 65 percent polyester/35 percent
cotton material.  The jacket of Styles 40637 and 49611 have a
mock-turtle neck collar with a drawstring tightening.  Style
49015 has a hood with a drawstring means of closure.  The pants
at issue feature side pockets, elasticized waist and ankle cuffs,
a drawstring for tightening, and a rear patch pocket with a
Velcro closure.  All of the subject garments have been coated
with 600 millimeters of polyurethane.  

     The jackets were entered at JFK Airport under subheading    
6201.93.3000, of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which is the provision for men's or
boys' water resistant windbreakers and similar articles.  The
pants were entered at JFK Airport under subheading 6203.43.3500,
HTSUSA, which is the provision for men's or boys' water resistant
trousers.  The  pants were liquidated under subheading
6211.33.0030, HTSUSA, which provides for track suit trousers. 
The jackets were liquidated under subheading 6211.33.0035,
HTSUSA, which provides for the jacket component of a track suit.

     The protestant contends that the polyurethane coating
renders the subject garments water resistant.  The protestant
further asserts that as a result of the additional coating, the
garments are unsuitable for use during sporting activities.

ISSUE:

     Whether the merchandise in question is properly classifiable
as a track suit under Heading 6211, HTSUSA, or as water resistant
separates under Chapter 62, 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.

     Heading 6211, HTSUSA, is the provision 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,
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.  

     As a result of the fashion trend which has developed in
recent years to wear garments which are designed and intended for
use in sporting activities as leisurewear garments, Customs has
had 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" during sporting activities.  Customs is
now of the opinion that requesting evidence of use for track suit
type garments is 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.  After further
review, it is now our 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 will
be classified under Heading 6211, HTSUSA.

     The instant garments contain the general characteristics of
a track suit.  These characteristics include the elasticized
waistband and cuffs, drawstring waist, a lightweight jersey knit
lining that breathes and wicks away moisture, shell fabric which
is commonly used in the construction of track suits, and a loose-
fit which improves mobility.  

     As stated above, you assert that the articles in question
are coated with 600 millimeters of polyurethane, which renders
the garments water resistant for tariff classification purposes. 
You further maintain that the garments are properly classifiable
as separates under the water resistant category of Chapter 62,
HTSUSA.  Additional U.S. Note 2, 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.

     When classifying garments such as the articles in question,
Customs realizes that the items are potentially classifiable
under competing provisions.  The garments have the general
appearance and characteristics of a track suit, which is
specifically provided for under Heading 6211, HTSUSA.  However,
the garments also meet the water resistant test for separates
provided at the subheading level of Chapter 62, HTSUSA.  In prior
rulings when classifying similar garments, Customs consistently
classified them under Heading 6211, HTSUSA.  The decision to
classify the garments under Heading 6211, HTSUSA, was premised on
the fact that the garments were more specifically provided for
under Heading 6211, HTSUSA instead of Heading 6201, HTSUSA, which
provides for men's jackets and Heading 6203, HTSUSA, which
provides for men's pants.  It is important to note that the
instant garments have the general appearance and construction of
a track suit.  However, to be properly classifiable under Heading
6211, HTSUSA, the subject garments must also be suitable for use
during sporting activities.  In this case, the extensive coating
added to the surface of the garments does not allow the garments
to breathe and wick away moisture during sporting activities. 
Therefore, the water resistant articles in question are not
suitable for use in sporting activities and are classifiable
under the applicable water resistant subheadings of Chapter 62,
HTSUSA.

HOLDING:

     Based on the foregoing, the jacket at issue is properly
classifiable under subheading 6201.93.3000, HTSUSA, which
provides for men's or boys' water resistant windbreakers and
similar articles.  The applicable rate of duty is 7.6 percent ad
valorem and the textile restraint category is 634.  The pants at
issue are properly classifiable under subheading 6203.43.3500,
HTSUSA, which provides for men's or boys' water resistant
trousers.  The applicable rate of duty is 7.6 percent ad valorem
and the textile restraint category is 647.  

     The protest should be allowed in full.  A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division