HQ 956298

March 9, 1995

CLA-2: CO:R:C:T 956298 OR

CATEGORY: Classification

TARIFF NO.: 6201.93.3511; 6203.43.4010

District Director of Customs

33 New Montgomery Street

San Francisco, CA. 94105-4510

RE: Further Review of Protest No. 2809-93-102031, Concerning the

Tariff Status of Track Suit Components Invoiced and Packaged

Separately

Dear Sir:

This concerns the above referenced protest. Further review

was requested by the protestant and granted by your office. Our

decision on the matter follows.

FACTS:

The merchandise in question consists of jackets and pants.

When imported, 2880 warm up pants were packed separately from

5040 warm up jackets. Separate entry summaries were filed for

each type of garment. The importer states that this was the

result of an inadvertent error on the part of the importer\'s

broker. Although the protest mentions samples, no samples were

received in this office. For the purposes of this ruling, we

will assume that the subject garments have all the

characteristics associated with track suits.

ISSUE:

All the goods were liquidated as entered, the pants under

the provision for men\'s trousers of synthetic fibers, in

subheading 6203.43.4010, Harmonized Tariff Schedule of the United

States Annotated (HTSUSA), with duty at the rate of 29.5 percent

ad valorem, and the jackets under the provision for men\'s

anoraks, windbreakers, and similar garments, of synthetic fibers,

in subheading 6201.93.3511, HTSUSA, with duty at the rate of 29.3

percent ad valorem.

The importer claims that all the pants (2880 pairs) should

have been classified with an equal number (2880) of the jackets

as track suits\--the jackets in subheading 6211.43.0050, HTSUSA,

and the pants in 6211.43.0040. The duty applicable to both pants

and jackets is 16.9 percent ad valorem. Since those two tariff

provisions are for women\'s and girls\' track suits and the

documentation refers to the garments as men\'s and boys\', we

assume that the protestant meant subheadings 6211.33.0050 and

6211.33.0040, respectively. In this instance, the rate of duty

is the same.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General

Rules of Interpretation (GRI\'s) of the Harmonized Tariff Schedule

of the United States (HTSUSA). GRI 1 provides that for legal

purposes, classification shall be determined according to the

terms of the headings in the tariff and according to any

pertinent section or chapter notes. It appears that GRI 1

governs the classification of the subject merchandise.

It is a cardinal rule of Customs law that goods are

classified according to their condition at the time of

importation.

Prior to January 1, 1989, under the Tariff Schedules of the

United States Annotated (TSUSA), track suit components imported

in the same shipment, invoiced and packaged separately, were

classified under the legal theory of \"entireties\" as track suits

unless the components were intended for sale as separates.

Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D.

41232 (1925); James G. Wiley v. United States, 56 Cust. Ct. 331,

C.D. 2645 (1966). Therefore, Customs was required to determine

how the garments were merchandised.

Under the HTSUSA, the judicially created principle of

\"entireties\"which existed under the TSUSA , as it relates to

garments, is specifically forbidden by Note 13 to Section XI,

HTSUSA, which provides:

Unless the context requires otherwise, textile garments

of different headings are to be classified in their own

headings even if put in up sets for retail sale.

However, since there exists headings specifically providing

for track suits, two piece garments sets which are determined to

be track suits are classifiable pursuant to GRI 1 and are not

subject to the requirements of Note 13. Therefore, track suitsare not
required to be packaged together at the time of

importation, or even in the same container, in order to be

classified together under a heading or subheading which provides

for track suits.

Where sets of garments are not packed together in such a

manner that they are readily identifiable as track suits at the

time of importation, the classification of those garments depends

on the intent of importer. As Customs stated in Customs

Headquarters Ruling (HQ) 088423, dated May 20, 1991:

If, at the time of importation, the importer has bona

fide intention to sell the suit components as suits, as

evidenced by the documentation in the entry package,

then the merchandise, in the absence of evidence to the

contrary, is classifiable as suits. If, at the time of

importation, the importer has the bona fide intention

to sell the suit components separately, as evidenced by

the documentation in the entry package, then the

merchandise, in the absence of evidence to the

contrary, is classified as separates.

In the instant circumstance, while the garments in question

physically may qualify as track suits, they were packaged

separately, invoiced separately, and entered by the importer\'s

agent separately. The only evidence submitted to Customs that

the 2880 pants and 2880 jackets will be marketed as track suits

and not as separates are statements in the protest to that

effect. Protestant has furnished a portion of a catalogue

showing the warm-up jacket and warm-up pants pictured on the same

page. The jackets are stated to come in four different color

combinations, each one having its own separate style or order

number. The pants also stated to come in the same four color

combinations and, as with the jackets, each has its own style or

order number. There is nothing on the submitted page which

indicates that the pants and jackets are sold together as \"track

suits\". Accordingly, the information furnished is insufficient

to show that the importer intended at the time of importation to

merchandise the 2880 pants with 2880 of the jackets as track

suits.

HOLDING:

All the entry documents indicate that the garments were

imported, and intended to be sold, as separates and there is no

adequate information or evidence to indicate a contrary intent.

Therefore, the merchandise was properly classified as separates

and not as track suits. Accordingly, the protest should be

denied in full.

In accordance with section 3A(11)(b) of Customs Directive

Number 099 3550-065, dated August 4, 1993, Subject: Revised

Protest Directive, this decision should be attached to the

Customs Form 19, Notice of Action, and furnished to the

protestant no later than 60 days from the date of this letter.

On that date the Office of Regulations and Rulings will take

steps to make the decision available to Customs personnel via the

Customs Ruling Module in ACS and to the public via the Diskette

Subscription Service, Freedom of Information Act, and other

public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division