HQ 0950846 - Decision on application for further review of protest no. 1512-90000011; classification of nylon cycling shorts with leather (chamois) insert sewn to crotch and seat; chamois designed to absorb sweat, prevent chafing; garment only practicable for use when cycling; special article of apparel under heading 6114, HTSUSA; not fashion shorts; not leather apparel - United States International Trade Commision Rulings

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HQ 950846

April 8, 1992

CLA-2 CO:R:C:T 950846 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3070

Port Director
U.S. Customs Service
P.O. Box 1936
1825 Crossbeam Road
Charlotte, North Carolina 28217

RE: Decision on application for further review of protest no. 1512-90000011; classification of nylon cycling shorts with leather (chamois) insert sewn to crotch and seat; chamois designed to absorb sweat, prevent chafing; garment only practicable for use when cycling; special article of apparel under heading 6114, HTSUSA; not fashion shorts; not leather apparel

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Gita Sporting Goods, Ltd., on February 12, 1990, against your decision on the classification of textile and leather cycling shorts. A sample was submitted for Customs' examination.

FACTS:

The article at issue is a pair of cycling shorts constructed from nylon with a spandex application and a sewn-in lining of chamois leather that covers the crotch and seat. The shorts are manufactured in Italy under the Giordana trademark and are generally sold to professional and serious cyclists. The purpose of the leather lining is to draw moisture away from the crotch area to prevent chafing when biking. This is a necessary feature in shorts used by serious cyclists as chafing is a significant hazard of this sport. The shorts may be worn by men and women.

Counsel for the importer, Sandler, Travis & Rosenberg (hereinafter referred to as "Counsel"), submit that the Giordana Aero shorts are leaders in the field of cycling clothing and are
generally considered by professional cyclists to be the highest quality shorts available. Counsel submitted numerous exhibits of various trade journals and advertisements depicting professional cyclists clad in Giordana clothing.

The protestor entered these shorts through the port in Charlotte, North Carolina, seeking classification under subheading 4203.10.4090, HTSUSA, which provides for articles of apparel and clothing accessories of leather. Customs classified the goods under subheading 6104.63.2030, HTSUSA, which provides for women's or girls' knit shorts of man-made fibers. Customs' classification was based on a General Rule of Interpretation 3(b) analysis which resulted in a finding that the man-made fibers imparted the article's essential character.

ISSUE:

Whether cycling shorts with leather (chamois) inserts sewn to the crotch area and seat are classifiable under heading 4203, HTSUSA, as leather apparel, under heading 6104, HTSUSA, as man- made fiber shorts, or under heading 6114, HTSUSA, as other knit garments constructed of man-made fibers?

LAW AND ANALYSIS:

Classification of merchandise under the tariff is in accordance with the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

It is our opinion that classification of the merchandise at issue can be determined using GRI 1 without resorting to a GRI 3(b) analysis.

The subject merchandise was entered and liquidated under subheading 6104.63.2030, HTSUSA, which provides for, inter alia, women's or girls' synthetic fiber shorts. Classification was based on a determination that the essential character of the shorts was imparted by the outer surface of man-made textile materials. While it is true that the entire outer surface of the garment at issue is comprised of nylon, and the chamois insert is not visible when the shorts are worn, the effects of the chamois insert are clearly visible (it creates an unsightly bulge) and the presence of the insert is felt when worn and makes the garment too restrictive for everyday wear as fashion shorts.

The presence of the chamois insert is such that it renders the wearing of this article impractical for any purpose other than cycling. This office observed the shorts on a live model. The chamois insert was readily apparent from a side and rear view of the model. Not only is the bulge created by the chamois insert unseemly, but it made walking in the shorts somewhat restrictive and uncomfortable. It is clear that the chamois insert's purpose is purely functional (i.e., to prevent chafing and to absorb sweat) and the design of the shorts is such that it renders these shorts impractical for use as dress-type shorts of the kind classifiable in heading 6104, HTSUSA.

It is important to distinguish the article at issue from similar synthetic fiber shorts, also frequently referred to as "biking" or "cycling" shorts, that do not have a leather insert. Customs has previously classified the latter under heading 6104, HTSUSA. Nylon shorts without inserts are not specifically designed for a particular purpose; rather, they are suitable for wear as fashion shorts as well as for use in a variety of sports. The shorts in the instant case, as stated above, are specifically designed for cycling and the presence of the chamois insert effectively limits their use so that they are not properly classifiable as fashion shorts of heading 6104, HTSUSA.

Counsel submits that classification of this article is appropriate under heading 4203, HTSUSA, which provides for articles of apparel and clothing accessories, of leather or of composition leather. This determination was based on the assertion that the essential character of this article is imparted by the chamois insert. Although we recognize that the chamois insert is the most expensive component of this article, as well as providing the function which is imperative for the use of these shorts when cycling, we are not of the opinion that these shorts are "leather apparel". The leather component of these shorts is relatively small, not itself visible when worn and not substantial enough to constitute an article of leather.

In Headquarters Ruling Letters (HRL's) 083858 and 086973, dated April 25, 1989 and April 30, 1990 respectively, Customs classified padded ice hockey shorts as special articles of apparel used for certain sports. An analogy may be drawn between the ice hockey shorts and the cycling shorts presently at issue in that both types of articles are deemed sports clothing designed for specific sports and are inappropriate for use as fashion shorts.

The Explanatory Notes, which constitute the official interpretation of the Harmonized System at the international level, provide at EN 95.06(B)(13), that protective gear of heading 9506 includes such articles as fencing masks and breast plates, elbow and knee pads, cricket pads and shin guards. It is clear that the protective articles contemplated by EN 95.06(B)(13) are designed to protect the wearer against injury such as blows, falls and kicks. Although the articles at issue are designed to protect from chafing they are not protective sports equipment but rather protective sports clothing and are therefore excluded from classification under heading 9506, HTSUSA. This conclusion is supported by HRL 086973, in which Customs noted that although protective equipment is covered by heading 9506, HTSUSA, "that heading embraces only certain forms of protective gear, and that sports clothing, regardless of the protection they afford the wearer, is still excluded."

Likewise, subheading 9902.62.01, HTSUSA, is not applicable to these garments although this provision does encompass sports wearing apparel which is specifically designed to protect against injury from blows, falls, road burns and fires. This is a special legislative provision and Customs has never extended application of this provision to exemplars outside the above noted types of injury. The language is a carryover from the Tariff Schedules of the United States (TSUSA) (headnote 1(v) to Schedule 7, Part 5, subpart D) and was not intended to expand product coverage. A large number of articles can be argued to "protect" from the hazards of a sport, e.g., baseball uniforms can be argued to protect the player from cuts and abrasions when sliding into base, certain duck or denim garments can be argued to protect a hiker or hunter from scratches from brush. Since Customs has never considered any of these injuries to be of the sort "protective" clothing should guard against, we would certainly not consider clothing which protects from chaffing to be included in the type of apparel mentioned in the provision.

Heading 6114, HTSUSA, provides for, inter alia, other garments, knitted or crocheted, and special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys' silks, ballet skirts, leotards), which are not provided for more specifically in the preceding headings of this Chapter. As set forth above, the article at issue is an article of apparel designed for cycling and classification is appropriate under this heading.

Customs emphasizes that it is necessary to exercise caution when interpreting rulings dealing with these garments. The term "biking" or "cycling" shorts is being used liberally by the
fashion and sporting goods industry to identify a range of garments similar to those at issue except that they may vary in their construction considerably: they may not have a chamois insert, they may use padding made from something other than leather, or they may not utilize padding at all. We emphasize that this ruling is limited to the classification of synthetic fiber cycling shorts which have a leather insert sewn to the crotch and seat area.

HOLDING:

The subject merchandise is classifiable under subheading 6114.30.3070, HTSUSA, which provides for other garments, knitted or crocheted: of man-made fibers: other...other: women's or girls' and the applicable rate of duty is 16.1%. The textile category is 659.

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 renegotiations and changes, to obtain the most current information available, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal 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, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

As the rate of duty under the classification indicated above is less than the liquidated rate, you are instructed to grant the protest in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action.

Sincerely,

John Durant, Director

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