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

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