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HQ 955479


March 17, 1994

CLA-2 CO:R:C:T 955479 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 6204.63.3532

Karin Seemuller
Marker Limited
P.O. Box 27327
Salt Lake City, Utah 84127-0327

RE: New York Ruling Letter 887898 affirmed; classification of bicycle shorts from Hong Kong; suitable for use by either men or women; not limited to use in cycling.

Dear Ms. Seemuller:

This is in response to your letter, dated November 24, 1993, requesting that we reconsider New York Ruling Letter (NYRL) 887898, dated July 19, 1993, which concerned the tariff classification of two pairs of shorts. Specifically, you have asked to reconsider the classification of a garment identified in NYRL 887898 as style 850204.

FACTS:

The submitted sample, the Trail Short, is a size medium pair of shorts constructed from 100 percent nylon woven fabric. The garment features a knit inner lining which is constructed with elastomeric yarns. It possesses an elasticized waist, an internal drawstring, zippered side-pockets, side vents and a pad or insert sewn at the crotch.

You have enclosed a copy of Marker Limited's Spring 1994 catalogue for the "Marker LTD Venture Sport Collection." The foreword states that:

Marker LTD's 1994 Spring Venture Sport Collection features a variety of all new products for spring, summer and fall. The entire line has been designed with a focus on performance, comfort and value to help enhance all of your outdoor pursuits.

The Trail Short is featured in a section entitled X-Cursion Wear. You have directed our attention to a sizing chart found on page 26. The chart indicates that a pair of men's size medium Marker pants measures approximately 32 to 34 inches at the waist and correlates to a women's size 10.

You have submitted specifications for the Trail Short which indicate that the relaxed waist measures 29 inches and that the hip measurement 3 inches up from the crotch is 46 inches. By way of contrast, you have provided us with the specifications for a pair of women's stretch pants. This garment possesses a relaxed waist measurement of 27.5 inches and a hip measurement 3 inches up from the crotch of 38 inches.

In NYRL 887898, we classified the Trail Short in subheading 6204.63.3532, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for women's shorts of synthetic fibers.

ISSUE:

What is the proper tariff classification for the Trial Shorts?

LAW AND ANALYSIS:

In your request for reconsideration, you argue that the Trail Short is properly classified as a men's garment. Woven garments are classifiable in Chapter 62, HTSUSA, which provides for made up textile articles, not knitted or crocheted. Note 8 to Chapter 62 states that:

Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

Garments which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.

As the Trail Short does not possess a front closure, it cannot be classified as a men's garment on this basis. Hence, we must determine whether this article is designed for men on the basis of its physical characteristics. The Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories, CIE 13/88, Foreword, states that:

In determining whether a garment is identifiable as men's or boys', or as women's or girls', the following should be considered: 1) sizing, 2) construction, 3) styling, and 4) other factors such as packaging, labelling, etc. Little weight should be given to the consignee or ultimate retailer of a particular shipment or its invoicing. Other factors may be considered and any factor may be determinative by itself or in combination with one or more factors.

The styling, construction, packaging and labeling of the Trail Short do not identify it as being for either men or women. However, the marketing and sizing of the Trail Short offer some guidance in this regard. First, we note the presence of the size chart on the last page of the Marker catalogue, which converts men's sizes to women's sizing. The conversion chart in and of itself suggests that garments contained in the catalogue are designed with both men and women in mind.

In addition, you have submitted specifications for the Trail Short and a pair of ladies stretch pants. You note that the sizing for the ladies garment is smaller than the sizing for the Trail Short. However, the sizing of the Trail Short at the waist (29 inches) is smaller than the sizing of typical men's pants (32 to 34 inches) as set forth by the sizing chart in the Marker catalogue. The fact that the Trail Short is sized between the typical Marker men's and ladies' pants again suggests that it has been designed for use by either men or women. Pursuant to Chapter 62, note 8, garments which cannot be identified as either men's or women's garments are classified as women's garments. Therefore, the Trail Short was properly classified as a women's garment.

In your request, you also observe that the Trail Short has been designed for the cyclist as it possesses a pad at the crotch. The pad is composed of a material suitable for wicking away moisture. In addition, it reduces chaffing. You contend that the pad renders the Trail Short uncomfortable for every day use. You state that "the short was designed as a cycling garment for the active biker, who wants a more flattering look with all the technical features and performance of a tight." Based upon these characteristics, you suggest that this article is not properly classified as shorts.

In Headquarters Ruling Letters (HRL) 950846 and HRL 950847, dated April 8, 1992, we classified a pair of cycling shorts constructed from nylon with a spandex application and a sewn-on lining of chamois leather that covered the crotch and seat. In those decisions we considered several classification headings which arguably described the garments.

Heading 9506, HTSUSA, provides in part for articles and equipment for general physical exercise and athletics. In HRL 950846, we observed that:

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."

These observations are directly on point in this instance. As the Trail Short is regarded as sports clothing, and not protective gear, it is not classifiable in heading 9506.

Heading 6211, HTSUSA, provides in part for other garments, not knitted or crocheted. The Explanatory Note to heading 6211, at page 856, states that the Explanatory Note to heading 6114 (encompassing other garments, knitted or crocheted) applies to articles of heading 6211, and provides, at page 843, that the heading includes "special articles of apparel used for certain sports or for dancing or gymnastics (e.g. fencing clothing, jockeys' silks, ballet skirts, leotards)." Therefore, if the Trail Short is regarded as a "special article of apparel used for certain sports," it will not be classified as a pair of women's shorts.

In HRL 950846, we concluded that cycling shorts with a lining of chamois leather was a special article of apparel used for certain sports. However, this decision was limited to the shorts in question and did not purport to encompass all garments referred to as cycling shorts:

The shorts are manufactured in Italy under the Giordana trademark and are generally sold to professional and serious cyclists.

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 the 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 6140, 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.

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. (Emphasis added).

Thus, the cycling shorts at issue in HRL 950846 were marketed to professional and serious cyclists. The chamois insert was unsightly and clearly visible when worn. The garment was impractical for everyday use as the insert restricted movement. In sum, the cycling shorts were impractical for any other purpose than cycling. We noted that garments described as cycling shorts would be regarded as shorts if suitable for use in a variety of settings. Specifically, we stated that cycling shorts which possessed padding made from materials other than leather may be classified as shorts.

Although the Trail Short has been designed with a view to cycling, it is not marketed to professional and serious cyclists. Rather, it is sold with other garments suitable for various "outdoor pursuits." You state that the short "was designed as a cycling garment for the active biker, who wants a more flattering look with all the technical features and performance of a tight." This language suggests that the Trail Short is intended to be fashionable, as opposed to strictly utilitarian.

Unlike the cycling shorts in HRL 950846, the insert in this case is not apparent when worn. Moreover, we found that the padding was not bulky, nor was it uncomfortable as you suggest. Hence, we conclude that the Trail Short may be used for purposes other than cycling despite the presence of the padding. As a result, the Trail Short is not a special article of apparel used for certain sports and is properly classified as a pair of women's shorts.

HOLDING:

NYRL 887898 is hereby affirmed. The subject merchandise is classifiable under subheading 6204.63.3532, HTSUSA, which provides for women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): trousers, bib and brace overalls, breeches and shorts: of synthetic fibers: other: other: other: other: other: shorts: women's. The applicable rate of duty is 30.4 percent ad valorem. The textile quota category is 648.

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 the subject of frequent negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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