HQ 955519

April 15, 1994

CLA-2 CO:R:C:T 955519 CMR

CATEGORY: Classification

TARIFF NO: 6201.93.3510, 6203.43.4010

District Director

U.S. Customs Service

4430 E. Adamo

Suit 301

Tampa, Fla. 33605

RE: Application for Further Review of Protests Nos.

1803-92-100022 and 1803-93-100011; Requirement for AFR met at

time filed

Dear Ms. Zwicker:

This is in response to the above cited protests, filed by

Gibney, Anthony & Flaherty, on behalf of their client, against

the classification by the Area Port Director, Jacksonville,

Florida, of certain merchandise as jackets and pants as opposed

to as track suits. Although protestant received two pre-

classification rulings on the subject merchandise prior to

importation, protestant has met the requirements under 19 CFR

174.24(c). This provision provides that a protestant shall be

accorded further review when the decision against which the

protest is filed:

Involves matters previously ruled upon by the Commissioner

of Customs or his designee or by the Customs courts but

facts are alleged or legal arguments presented which were

not considered at the time of the original ruling.

Protestant has submitted legal arguments not addressed in

any previous Customs rulings regarding the classification of this

or similar merchandise. A sample of the merchandise at issue was

submitted.

FACTS:

The jacket of style 2204 is constructed of a 100 percent

nylon woven fabric outershell, a 65 percent polyester/35 percent

cotton knit jersey fabric lining in the body of the garment, and

a 100 percent nylon woven fabric lining in the arms. The garment

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features long sleeves with elasticized cuffs, a 2-1/2 inch wide

elasticized waistband, a full frontal opening secured by a zipper

closure which extends to the end of the collar, a stand-up

collar, and two front pockets at the waist.

The pants of style 2204 are constructed of a 100 percent

nylon woven fabric outershell, a 65 percent polyester/35 percent

cotton knit jersey fabric lining for the torso portion of the

pants extending slightly down the legs portion, and a 100 percent

nylon woven fabric lining the remaining legs portion of the

pants. The pants feature an elasticized waistband with an

enclosed drawstring for tightening, a zippered fly that does not

extend through the waistband, and elasticized ankle cuffs with

side zippers which extend about 9 inches up the outside of the

legs.

The jacket and pants are color coordinated and each feature

matching embroidered logos of a major league sports franchise.

Style 2204 was the subject of two pre-classification ruling

letters\--PC 868293 of November 26, 1991, and PC 873396 of May 4,

1992\. PC 868293 (1991) indicated the classification for the

jacket and pants of style 2204 as track suits components in

subheadings 6211.33.0030, HTSUSA, and 6211.33.0035, HTSUSA,

respectively (subject to duty at 17 percent ad valorem); but,

further indicated if imported separately, the classifications

would be subheadings 6201.93.3000, HTSUSA, and 6203.43.3500,

HTSUSA, respectively, as water resistant garments (subject to

duty at 7.6 percent ad valorem). In PC 873396 (1992),

classification for the jacket and pants of style 2204 is given as

subheadings 6201.93.3000, HTSUSA, and 6203.43.3500, HTSUSA,

respectively. This pre-classification ruling indicates that the

garments are imported separately.

The garments at issue were entered as separates in the

provision for water resistant garments, i.e, the jackets in

subheading 6201.93.3000, HTSUSA, and the pants in subheading

6203.43.3500, HTSUSA. The garments were entered in four separate

entries spanning a time period of approximately six weeks. Three

entries are the subject of protest #1803-92-100022, and one entry

is the subject of protest #1803-92-100011. Two entries contained

only jackets, style 2204J; one entry contained only pants, style

2204P; and one entry contained an uneven number of jackets and

pants, style 2204J (200) and style 2204P (1576).

The jackets and pants were liquidated as classified, in

subheading 6201.93.3510, HTSUSA, dutiable at 29.5 percent ad

valorem for the jackets, and in subheading 6203.43.4010, HTSUSA,

dutiable at 29.7 percent ad valorem for the pants. Customs

personnel determined the garments did not meet the water

resistance requirements of Additional U.S. Note 2, Chapter 62,

HTSUSA.

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ISSUE:

Are the jackets and pants of style 2204, entered in separate

shipments over a six week time span, classifiable as track suits

of heading 6211, HTSUSA?

Are the jackets and pants of style 2204, entered separately,

classifiable as track suits of heading 6211 by application of

General Rule of Interpretation 2?

LAW AND ANALYSIS:

As to the first issue, Customs has already addressed this

issue in Headquarters Ruling Letter (HRL) 954270 of August 17,

1993, addressed to Gibney, Anthony & Flaherty. Although the

ruling was issued to the firm on behalf of a different client,

counsel for protestant should be aware of this decision and

already have a copy. We are enclosing a copy, however, for your

reference.

HRL 954270 succinctly states Customs position in regard to

the classification of track suit components shipped separately on

different vessels, i.e., they are not classifiable as track

suits, but are classified as separates\--jackets or pants. As

Customs has addressed this matter and the protestant does not

raise any new legal arguments which have not already been

addressed in HRL 954270, we will not entertain this issue

further.

The protestant does raise a matter not previously addressed,

i.e., whether by application of General Rule of Interpretation

(GRI) 2, the components of a track suit may be classified as

track suits based upon an analysis that they are \"incomplete or

unfinished\".

GRI 2 provides, in pertinent part:

\(a\) Any reference in a heading to an article shall be taken

to include a reference to that article incomplete or

unfinished, provided that, as presented, the incomplete or

unfinished article has the essential character of the

complete or finished article. It shall also be taken to

include a reference to that article complete or finished (or

failing to be classified as complete or finished by virtue

of this rule), presented unassembled or disassembled.

The Explanatory Notes to the Harmonized Commodity

Description and Coding System, recognized as the official

interpretation of the tariff at the international level, defines

track suits at 61.12 (the Explanatory Notes of heading 6112 apply

mutatis mutandis, to heading 6211).

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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.

Track suits consist of two garments, namely:

\- A garment meant to cover the upper part of the body down

to or slightly below the waist. It has long sleeves, with

ribbed or elasticized bands, zip fasteners or other

tightening elements at the cuffs. Similar tightening

elements, including drawstrings, are generally to be found

at the bottom of this garment. When it has a partial or

complete opening at the front, it is generally fastened by

means of a slide fastener (zipper). It may or may not be

fitted with a hood, a collar and pockets.

\- A second garment (a pair of trousers) which may be either

close or loose fitting, with or without pockets, with an

elasticated waistband, drawstring or other means of

tightening at the waist, with no opening at the waist and

therefore no buttons or other fastening system. However,

such trousers may be fitted with ribbed or elasticated

bands, slide fasteners (zippers) or other tightening

elements at the bottom of the trouser-legs which generally

go down to ankle level. They may or may not have

footstraps.

The definition of track suits consistently refers to two

garments. Protestant would have us view the single components,

i.e., the jackets and pants of style 2204, as \"incomplete or

unfinished\" track suits and by application of GRI 2(a), classify

these garments as track suits.

While the jackets and pants, if presented together at the

time of importation, would meet the above cited definition of

track suits, a track suit, by definition, consists of two

garments. The argument that the jackets and pants should be

viewed as \"incomplete or unfinished\" track suits when presented

separately at the time of importation is without merit. GRI 2(a)

states that the incomplete or unfinished article must have the

essential character of the complete or finished article. As

track suits by definition consist of two garments, one garment

cannot have the essential character of a track suit. In fact, in

regard to the individual components, the jacket has the essential

character of a jacket, and the pants have the essential character

of pants. It is only when they are combined that they may

possess the essential character of a track suit.

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As to protestants specificity argument under GRI 3(a), we

believe it is sufficient to state that failure to meet the

definition of a track suit precludes classification as such in

heading 6211, and therefore, classification of the jackets in

heading 6201, as anoraks, windbreakers or similar articles, and

of the trousers in heading 6203 as trousers, are the most

specific headings among those which merit consideration.

In regard to the one entry which contained an uneven number

of jackets and pants (200 jackets, 1576 pants), we would not

agree that allowance should be made for classification of 200

tracksuits by matching the jackets with appropriate pants in this

shipment. This view is based upon the fact that the importer

received two pre-classification rulings indicating classification

of the merchandise imported separately, and the merchandise was

then indeed entered as separates. The earlier of the two

rulings, PC 868293 of November 26, 1991, does indicate a

classification for the goods imported together, but notes a

classification for separate importation.

Customs Service Decision 92-11, cited by protestant\'s

counsel, dealt with track suits in which equal numbers of jackets

and pants were separately packaged on the same ship and entered

on the same entry. In such a situation, the decision stated that

in absence of evidence to the contrary, Customs would look to the

bona fide intent of the importer in regard to the manner of sale

of the garments, i.e., as separates or as a set. This decision

merely attempted to ascertain the true \"condition as imported\" of

the merchandise at issue therein. It did not, by any means,

eliminate the principal of classification based upon condition as

imported.

In this situation, while protestant maintains that style

2204 was ordered, purchased and sold as a set, i.e., a track

suit, and has submitted documentation to that effect, it is our

view that the importer was well aware of the significance of the

\"condition as imported\" of the merchandise. As evidenced by

protestant\'s counsel\'s submissions, 9845 jackets and 11761 pants

were shipped. That is a difference of 1916 garments. Of the

four entries at issue, only one contained jackets and pants and

in vastly unequal numbers.

HOLDING:

Based upon the manner of entry of these garments and the

pre-classification rulings on style 2204, imported separately,

the protest should be denied in full. A copy of this decision

should be attached to the Customs Form 19 which is returned to

the protestant.

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

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

Directive, this decision should be mailed by your office to the

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

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the decision the Office of Regulations and

Rulings will take steps to make the decision available to customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Lexis, Freedom of

Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division