CLA-2 CO:R:C:G 083458 HP

Miss Dale Colton
Partner
India Imports of Honesdale
P.O. Box 204
Honesdale, PA 18431

RE: Asana Yoga Suits, imported as an ensemble, are not considered a martial arts uniform similar to judo, karate, and are classified according to each piece.

Dear Miss Colton:

This is in reply to your letter of December 14, 1988, to our New York Office, concerning the tariff classification of a Yoga Asana suit, produced in India, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of shirt and pants of 100 percent cotton non-identical fabric. The shirt features a partial front opening at the round neckline secured by three buttons fastening left over right, long sleeves with hemmed edges and a straight bottom with side slits. The pants feature two front pockets with slant openings and drawstring waist which adjusts and secures the waist. You have stated that the shirt and pants are sold principally as a set, but occasionally separately, to both men and women.

ISSUE:

Whether the shirt is considered for men or women under the HTSUSA?

LAW AND ANALYSIS:

Both Garments

The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's, taken in order.

Note 3(b) to Chapter 62, HTSUSA, states that:

[t]he term "ensemble" means a set of garments ... composed of several pieces made up in identical fabric, put up for retail sale, and comprising:

- one garment designed to cover the upper part of the body, ... and

- one or two different garments, designed to cover the lower part of the body and consisting of trousers, bib and brace overalls, breeches, shorts (other than swimwear), a skirt or a divided skirt.

All of the components of an ensemble must be of the same fabric construction, style, color and composition; they also must be of cor- responding or compatible size.

* * *

With respect to the instant merchandise, the sample shirt is a "small," while the sample pants are a "medium." You have stated that, for the most part, the pants and shirts are sold together in the same size. Occasionally, however, certain women require a top in a size larger than that of the pants. When distributed for this reason, it is our opinion that a larger size top is compatible with a smaller size pants. Therefore, the Yoga Asana suit satisfies the size requirements to be considered an ensemble.

Although the sample pants are constructed of a white fabric lighter in color than the top, you have stated that when the pants and tops are sold together, "both [the] top and bottom are of the same fabric, color, and composition...." Therefore, the Yoga Asana suit satisfies the fabric requirements to be considered an ensemble.

You have stated that the shirt and pants are primarily sold together, and will be imported and marketed as one top and one bottom, in a polyurethane bag. Periodically, replacement pants or shirts are sold to customers without a corresponding top or bottom. As this is divergent from the primary purpose of your commercial enterprise, the sale of Asana suits, and as the tops and bottoms are imported together into the Customs territory of the United States, classification as an ensemble is not affected.

As a result of the sale of replacement tops or bottoms described above, you periodically must order additional pieces. For example, your stock on January 1 is 100 Asana suits. You then sell 50 suits and, in addition, 10 pants as replacement parts. Your stock therefore is reduced to 50 tops and 40 pants. Consequently, to refurnish you supply, on June 1 you import 50 tops and 60 pants.

You now inquire as to the classification of differing quantities of tops and bottoms imported simultaneously. In order to be considered an ensemble under the HTSUSA, component "A" must be imported with component "B." If there are excess component "A's" or component "B's," those components must be classified separately. Therefore, in the above example, the 10 extra pants being imported would be classified as trousers, and the 50 tops plus the 50 remaining pants would be classified as ensembles.

Pants Imported Separately

Heading 6203, HTSUSA, provides for, inter alia, men's or boys' trousers. Heading 6204 provides similar coverage for women and girls.

Note 8 to Chapter 62, HTSUSA, provides:

Articles of this chapter [articles of apparel and clothing accessories, not knitted or crocheted] which cannot be identified as either men's or boys' garments of women's or girls' garments are to be classified in the headings covering women's or girls' garments.

As the pants are sold to both men and women in the United States, and there is no apparent way to distinguish between men's and women's Asana pants, the pants must be classified under the applicable provision for women's cotton trousers.

Shirts Imported Separately

Heading 6205, HTSUSA, provides for men's or boys' shirts. Heading 6206 provides similar coverage for women and girls.

The Explanatory Notes 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 from the various CCC countries. 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 62.05 states that:

[s]hirts having a front opening on the neckline which fastens or overlaps left over right are considered to be shirts for men or boys. By application of Chapter Note 8, shirts which cannot be identified as for men or boys or women or girls are to be classified as women's or girls' garments. [Emphasis added]

The language of Chapter Note 8, supra, requires classification in women's or girls' categories only when articles cannot be identified as for males or for females. Explanatory Note 62.05 aids the classifier in determining whether the garment was manufactured for males or females; in essence, this Explanatory Note allows no leeway when the type of fastening referred to exists. As a result, the shirt must be classified under the applicable subheading for men's cotton shirts.

You have stated that, in the future, the shirts may be constructed with the buttons fastening right over left. If all else remains the same, the shirts may then be classifiable as women's or girls' tops.

Type of Ensemble

Subheading 6203.22, HTSUSA, provides for, inter alia, men's or boys' judo, karate and other oriental martial arts uniforms, of cotton. Subheading 6204.22 provides similar coverage for women and girls. We must therefore decide whether the Asana suit is for men or women, and whether it can be considered an oriental martial arts uniform.

Men's or Women's Ensemble

Note 8 to Chapter 62, supra, requires classification in women's or girls' categories when articles cannot be identified as designed for males or for females. As an entirety, it is impossible to tell whether the ensemble is meant for men or women. Indeed, you have stated that the Asana suit is sold to both men and women without preference. Since the Explanatory Note to heading 6205 influences classification of shirts only, Chapter Note 8 compels classification as a women's or girls' ensemble.

Martial Arts Uniform or Other Ensemble

Martial arts are defined as "[a]ny of several Oriental arts of self-defense or combat, as karate, judo, or tae kwon do. usu. practiced as sport." Webster's II New Riverside University Dictionary (1984), at 729. The Encyclopedia Americana (1980), at 332, describes martial arts as

... an omnibus term applied to group of diverse activities that have evolved from ancient fighting skills developed in Asian countries. * * * The present-day applications vary considerably and include the graceful slow movements of tai chi....

* * *

Current usage limits the term "martial arts" to the Asian styles of weaponless and armed fighting, but it would also be accurate to refer to boxing, wrestling, ... and other modern sports as martial arts because they also derive from ancient battle skills.

* * *

There is evidence that various fighting specialties came to be known in China by way of India and Tibet....

* * *

The Principal Martial Arts

* * * Tai chi chuan, commonly called tai chi, is a graceful, gentle exercise widely practiced by men, women, and children in China. It has become popular in other countries, where it is practiced in conjunction with meditation or body awareness. The movements of tai chi are related to the movements of kung fu, but they are stylized and slow. Few persons assert that tai chi has self-defense applications, but some insist that it can be used for self- defense by exceptional individuals.

It is our opinion that although the strenuous physical and mental activities of yoga cause it to be similar to several forms of martial arts, in particular, tai chi, it cannot be considered a martial art in and of itself. Asana yoga, for which the instant merchandise is designed, is described by the Encyclopedia Americana, supra, as intended to "give the student physical fitness [through various postures] for further Yogic prac- tice...." You have described the purpose of these garments as "... allowing freedom and flexibility of movement for the postures in YOGA." Neither of these descriptions bears any relation "to the Asian styles of weaponless and armed fighting" portrayed above. Since subheading 6204.22.1000 does not provide for articles similar to those martial arts uniforms worn in judo, karate, etc, we are therefore of the opinion that this type of garment is not classifiable within the subheading for martial arts uniforms.

For information on adding similar garments to the subheading for martial arts uniforms, please contact: Chairman Committee for the Implementation of Textile Agreements U.S. Dep't of Commerce Room 3001 Washington, D.C. 20230

HOLDING:

As a result of the foregoing, the instant merchandise is classified as follows: when each top and bottom are imported together, the number of tops and bottoms being equal, the pants under subheading 6204.22.3040, HTSUSA, textile category 348, as 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), ensembles, of cotton, other, trousers and breeches, with the applicable rate of duty being 17.7 percent ad valorem; the shirts under subheading 6204.22.3065, HTSUSA, as 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), ensembles, of cotton, other, blouses and shirts, other, with the applicable rate of duty being 16.4 percent ad valorem.

When imported separately, or when the number of shirts exceeds the number of pants, the excess shirts under subheading 6205.20.2065, HTSUSA, textile category 340, as men's or boys' shirts, of cotton, other, other, other, other, men's, with the applicable rate of duty being 21 percent ad valorem.

When imported separately, or when the number of pants exceeds the number of shirts, the excess pants under subheading 6204.62.4020, HTSUSA, textile category 348, as 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 cotton, other, other, other, trousers and breeches, women's, other, with the applicable rate of duty being 17.7 percent ad valorem.

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 applicability of any import restraints or requirements.


Sincerely,


John Durant, Director
Commercial Rulings Division