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HQ 951627


August 14, 1992

CLA-2 CO:R:C:T 951627 jlj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6103.43.1550, 6103.43.1570, 6104.63.2030, 6104.63.2060, 6110.30.3050, 6110.30.3055

Mr. Mike Osborne
P. O. Box 452
Magill
South Australia 5072
Australia

RE: Classification of Shorts and Top; Headings 6110, 6103 and 6104

Dear Mr. Osborne:

In your letter of March 1, 1992, you requested a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for two garments which you state are a "basketball uniform." You intend to manufacture these garments and sell them to importers in the United States. You submitted two samples along with your letter. Both were received in this office on April 27, 1992.

FACTS:

The sample "uniform" submitted consists of two parts--an upper body garment (top) and a pair of shorts.

The top is a sleeveless pullover which is constructed of 100 percent nylon, finely knit, openwork mesh fabric. The top has a V-neck, contrast coloring at the neckline and armholes, and 3 1/2 inch wide shoulder portions. It has name and numerical appliques on the front and back panels. The top has a hemmed bottom.

The shorts are made of 100 percent nylon, finely knit openwork mesh fabric which is fully lined with finely knit, interlock fabric. They have a two inch wide, fully elasticized waistband. They have appliques and overlaid strips of fabric at each side, with a numerical applique on the left front side near the hem. The shorts have hemmed leg openings.

You have not indicated whether the garments are for male, female or unisex (i.e., by both sexes) wear, nor have you indicated whether the garments will be imported plain or with the appliques affixed. Our information is that the usual practice among suppliers of sports uniforms is to carry the basic garments in stock in various colors and to embroider or applique the specific team identifiers as the garments are ordered.

ISSUE:

Is the instant top classified in Heading 6110, HTSUSA, while the shorts are classified in Headings 6103 and 6104, HTSUSA, depending upon the intended sex of the wearer, or are they classified as other garments in Heading 6114, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be according to the terms of the headings and any relative section or chapter notes.

The competing tariff headings are as follows:

Heading 6110--Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted

Heading 6103--Men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted

Heading 6104--Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted

OR

Heading 6114--Other garments, knitted or crocheted

The question here is whether the instant samples are classified as ordinary garments in Heading 6110 for the pullover and Headings 6103 or 6104 for the shorts, or as "other clothing" in Heading 6114. Since Heading 6114 is a basket provision, the garments are classified in Headings 6103, 6104 and 6110 unless they are excluded from those provisions for some reason.

The Explanatory Notes (EN), the official interpretation of the tariff at the international level, for Heading 6114 state regarding Heading 6114:

This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.

The heading includes, inter alia:

(5) Special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys' silks, ballet shirts, leotards).

We believe that Heading 6114, as evidenced by the exemplars stated above, is meant to cover specifically designed or constructed sports garments. It is our opinion that the heading does not cover all wearing apparel which could be worn for sports, but only those sports clothes which are specially designed to be worn in a particular sport and which would not ordinarily be worn any other time.

Two previous Customs Headquarters Ruling Letters (HRL's) provide guidance regarding what is included in Heading 6114. In HRL 086973 of April 30, 1990, we ruled that certain padded hockey pants were classified in Heading 6114 because they were specifically designed for ice hockey and served a particular function in providing protection for the player. These padded pants are not ordinarily worn except while engaging in the sport.

In HRL 950846 of April 8, 1992, we ruled that cycling shorts having a padded chamois insert in the seat and crotch area to prevent chaffing, were special articles of apparel used in riding a bicycle. Because the thick padding would be uncomfortable for ordinary wear, and because of the unseemly appearance of the garment when worn otherwise than in the sport, these shorts were considered special articles of apparel for the sport of biking.

Both of the above-mentioned garments are distinguishable from the samples before us. With the exception of the appliques, which may or may not be sewn to the clothing at the time of importation, there is nothing to distinguish them from an ordinary mesh pullover or a pair of general purpose jogging shorts. They are not made in a special fashion, nor do they possess any special features which would make them uniquely suited for playing basketball.

The same rationale applies to the pullover. We do not believe that the mere addition of a name or numerical applique to a garment is sufficient to consider the garments specially designed for a particular sport. The appliques merely serve as identifiers which can be applied to any garment for any sport.

The garments in question are more specifically provided for elsewhere, i.e., in Headings 6110 and 6103/6104. Both the pullover and the shorts may be worn on and off a basketball court. Neither garment is so specialized that it could be worn only while engaged in the sport, nor are they unsuitable for wear off the basketball court. Neither has a special design or construction feature which could be used to distinguish the instant samples from other garments worn as pullovers or as shorts.

We note that there is a specialized section of the wearing apparel trade which caters to sports fans by selling officially licensed sports clothing to be worn as ordinary wearing apparel. The Athletic Supply Catalogue, Fall 1990, offers an "NBA Reversible Tank." The advertisement for this garment reads "Warm up in either side of this reversible mesh tank top. Cool 100 percent nylon mesh provides needed ventilation during those intense workouts and training."

The Official New York Sports Catalogue, October 1989, advertises replica game shorts and game jerseys. The advertisement for the replica game jerseys for a New York team reads : "Tank top with the look of the pros...Match with the replica game shorts for a winning outfit. Numbers front and back." The advertisement for the replica shorts reads: "Great on or off the court. The look of the game shorts worn by the players."

HOLDING:

We find that, if the top is for men and boys, it is specifically provided for under the provision for men's or boys' knit pullovers, waistcoats (vests) and similar articles, of man- made fibers in subheading 6110.30.3050, HTSUSA. If the top is for women's, girls' or unisex wear, it is classified under a similar provision, in subheading 6110.30.3055, HTSUSA. Both the provisions carry a duty rate of 34.3 percent ad valorem if the products are manufactured in Australia.

If the shorts are for males, they are provided for under the provision for men's or boys' knit shorts (other than swimwear), of synthetic fibers in subheading 6103.43.1550, if for men, or in subheading 6103.43.1570, HTSUSA, if for boys. Both provisions have a duty rate of 30 percent ad valorem.

If the shorts are for women's, girls' or unisex wear, they are provided for under the provision for women's or girls' shorts (other than swimwear), of synthetic fibers, in subheading 6104.63.2030, if for women or if unisex and in adult sizes, or in subheading 6104.63.2060 if for girls or if in nonadult unisex sizes. Both provisions are dutiable at the rate of 30 percent ad valorem for products of Australia.

Products of Australia are not currently subject to any textile import restrictions.

Sincerely,

John Durant, Director
Commercial Rulings Division

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