HQ 951822: Decision on Application for Further Review of Protest No. 5301-2-100001; boys' jackets and pants

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 951822

                       September 10, 1992




CLA-2  CO:R:C:T   951822  CC

CATEGORY:  Classification

TARIFF NO.:  6201.93.3520; 6203.43.4020 

District Director of Customs 
Portway Plaza Suite 400
1717 East Loop
Houston, TX 77029  

RE:  Decision on Application for Further Review of Protest No.
     5301-2-100001; boys' jackets and pants

Dear Sir:

     This protest was filed against your decision in the
liquidation of various entries involving the importation of boys'
jackets and pants produced in the Philippines.
  
FACTS:

     The merchandise at issue is designated by the protestant as
"boys' warmup jackets and pants."  They are made of a woven nylon
shell with a lining composed of a blend of 65 percent polyester
and 35 percent rayon fabric.  

     The jackets were liquidated under subheading 6201.93.3520 of
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for 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 pants were liquidated under subheading 6203.43.4020, HTSUSA, 
which provides for 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 protestant contends that the subject jackets are
classifiable under subheading 6211.33.0035, HTSUSA, which
provides for track suits, ski-suits and swimwear; other garments,
other garments, men's or boys', of man-made fibers, track suits,
other.  The protestant contends that the subject pants are
classifiable under subheading 6211.33.0030, HTSUSA, which
provides for track suits, ski-suits and swimwear; other garments,
men's or boys', of man-made fibers, track suits, trousers.

ISSUE:

     Whether the merchandise at issue is classifiable as track
suits of Heading 6211, HTSUSA?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.  

     Heading 6211, HTSUSA, provides for track suits, among other
articles.  The Harmonized Commodity Description and Coding
System, Explanatory Notes, the official interpretation of the
HTSUSA at the international level, at page 841, states 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 protestant contends that the subject merchandise is
classifiable as track suits since it is clearly intended to be
purchased, sold, advertised, and used by consumers as track
suits.  The protestant also states that track suits are not
limited for use in running and jogging, but can be used in other
activities such as golf; thus, the protestant believes that
rulings which state that track suits are limited for use in
running and jogging are in error.  The protestant also believes
that the application of the specificity provision of GRI 3 would
result in classifying this merchandise as track suits.  Finally,
the protestant contends that the application of the use
provisions of the U.S Additional Rules of Interpretation make the
merchandise at issue classifiable as track suits.  

     In Headquarters Ruling Letter (HRL) 089321 of August 19,
1992, we stated the following concerning the classification of
boys' athletic-style garments:

     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 other nonrunning and nonjogging 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 for
sale as garments 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.  

     Although the protestant states that the merchandise at issue
is clearly marketed and sold as track suits, no evidence has been
submitted to substantiate this claim.  No evidence has been
furnished that this merchandise is intended to be worn during
running or jogging.  In regard to the protestant's position that
the term "sporting activities" of the applicable Explanatory
Notes refers to more than running and jogging, and that track
suits can be used in many sports, we note that Customs has ruled
in many cases that track suits are garments which are intended to
be worn during running or jogging.  (See, for example, HRL 950203
of November 21, 1991, HRL 089304 of August 29, 1991, HRL 089321
of August 19, 1991, and HRL 089770 of August 23, 1991).  We do
not believe that this position is inconsistent with the legal
terms of Heading 6211 or with the applicable Explanatory Notes. 
In HRL 088569 of May 31, 1991, we stated the following concerning
this issue:

     ... We specifically reject the position that the
phrase "sporting activities" is a general term
referring to all types of sports.  ... In order for a
set of garments to be commonly and commercially "track
suits", those garments must be associated in some
manner with running or jogging."


     The protestant claims that classification of the subject
merchandise other than as track suits is inconsistent with the
specificity provision of GRI 3.  GRI 3 states, in pertinent part,
that when "goods are, prima facie, classifiable under two or more
headings, classification shall be effected as follows: (a) The
heading which provides the most specific description shall be
preferred to headings providing a more general description."  The
merchandise at issue is not, prima facie, classifiable in Heading
6211 since it does not meet the common and commercial definition
of track suit; consequently,  GRI 3 is not applicable.  Finally,
the protestant has argued that classification of the subject
merchandise other than as track suits is inconsistent with U.S.
Additional Rules of Interpretation 1(a) and 1(b) concerning
principal use and intended use.  As stated above, there has been
no evidence presented that this merchandise is to be used as
track suits, associated in some manner with running or jogging.  

     Accordingly, since there has been no evidence presented that
the subject merchandise is intended to be used during running or
jogging, it is not classifiable in Heading 6211 as track suits. 
         
HOLDING:

     The subject jacket is classified under subheading
6201.93.3520, HTSUSA, which provides for 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, boys'.  The rate of duty is 29.5 percent ad valorem, and
the textile category is 634.  

     The subject pants are classified under subheading
6203.43.4020, HTSUSA, which provides for 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, trousers and breeches, boys', other.  The rate of duty is
29.7 percent ad valorem, and the textile category is 647.

     The protest should be denied.  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 on the protest. 
 

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division