HQ 089421

September 24, 1991

CLA-2 CO:R:C:T 089421 HP

CATEGORY: Classification

TARIFF NO.: 6211.33.0007

Mr. Daniel C. Holland

District Director

U.S. Customs Service

909 First Avenue, Room 2039

Seattle, WA 98174

RE: Further Review of Protest 3001-91-100231. Ski suit; snow

suit; principal; use; actual; coverall; overall; insulated;

children

Dear Mr. Holland:

This is in reply to your Memorandum forwarding documentation

for a further review of Protest Number 3001-91-100231, dated 3-

3-91. This Protest was submitted by Gladish & Associates, on

behalf of xxxxxxxxxxxx. Please reference your file PRO-4:SE:C:E

LB.

FACTS:

The merchandise at issue consists of two styles of boys\'

coveralls, styles RW-T2PC and RW-T3PC. The shells and lining are

nylon. The fill is polyester. Each garment has a woven collar,

long sleeves, a front zipper opening, and a fully elasticized

waistband and sleeve cuffs. Style RW-T2PC has a detachable hood.

Both styles are imported in boys\' sizes S, M and L. The importer

contends these garments are water-resistant ski-suits.

ISSUE:

Whether the instant garments are considered ski-suits under

the HTSUSA?

LAW AND ANALYSIS:

Subheading 6211.20, HTSUSA, provides for ski-suits. Note 6

to Chapter 62, HTSUSA, states:

For the purposes of heading 6211, \"ski-suits\"

means garments or sets of garments which, by

their general appearance and texture, are

identifiable as intended to be worn

principally for skiing (cross-country or

alpine). They consist \... of:

\(a\) A \"ski overall,\" that is, a one piece

garment designed to cover the upper and

lower parts of the body; in addition to

sleeves and a collar the ski overall may

have pockets or footstraps;

\* \* \*

Subheading 6211.20, is a use provision. Consequently, the

heading under which the subject merchandise will be classified

will be controlled by the use in the United States at, or

immediately prior to, the date of importation of goods of the

class or kind to which the subject merchandise belongs. The

controlling use is the principal use of this type of merchandise

\-- the use which exceeds any other single use in the United

States. Additional U.S. Rule of Interpretation 1(a), HTSUSA.

In HRL 088108 of February 22, 1991, we classified

substantially similar merchandise, stating:

Both Protestant and the Import

Specialist have submitted voluminous

materials purporting to demonstrate the use

toward which this merchandise is put. Adver-

tisements from catalogs such as J.C. Penney,

Sears, and Gorsuch Ltd., Vail (a major ski

apparel retailer), depict garments

essentially identical to the garments at

issue as either snow-suits or ski-suits. \* \*

\* It would seem, therefore, that this

documentation alone is insufficient to

determine the principal use of these

garments.

In HRL 082285 DRR of February 15, 1990,

we stated that similar merchandise was not

classifiable as ski-suits, since \"\[t\]he

construction of the garment does not support

a finding that it is intended to be worn

principally for skiing.\" Although no

rationale was given to support this

conclusion, it was nonetheless correct.

Irrespective of advertising, the use of this

class or kind of merchandise, by children,

which exceeds any other use in the United

States, is as recreational wear in Winter

(i.e., romping in the snow, sledding, etc.).

While it may be true that the particular

garments imported by the Protestant are sold

as ski-suits, the actual use of certain

shipments of merchandise will not dictate a

classification controlled by principal use.

HOLDING:

As a result of the foregoing, the instant merchandise is

classified under subheading 6211.33.0007, HTSUSA, textile

category 659, as track suits, ski-suits and swimwear; other

garments, other garments, men\'s or boys\', of man-made fibers,

coveralls, jumpsuits and similar apparel, other, insulated for

cold weather protection. The applicable rate of duty is 17

percent ad valorem. Since the rate of duty under the

classification listed above is the same as the liquidated rate,

you are instructed to deny the protest in full. A copy of this

decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director

Commercial Rulings Division