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HQ 966500




August 28, 2003

CLA-2 RR:CR:TE 966500 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6104.53.2010; 6104.63.2030

Mr. Pete Michalczyk
Colorado Customs Brokers
6750 E 46th Ave. Dr
Unit 600
Denver, Colorado 80216

RE: Request for Reconsideration of NY I88505; Cycling Skirt with Attached Shorts; Note 13, Section XI, HTSUS; Heading 6104; Heading 6114

Dear Mr. Michalczyk:

This is in reply to your letter of April 21, 2003, on behalf of Dash America, Inc., d.b.a. Pearl Izumi, seeking reconsideration of New York Ruling Letter (NY) I88505, dated December 9, 2002, concerning the classification of shorts with an attached skirt. You refer to the garments as a “Tango Cycling Skort.”

In NY I88505, Customs and Border Protection (“CBP”) classified the skirt and shorts as separate garments under subheading 6104.53.2010 of the Harmonized Tariff Schedule of the United States (HTSUS) and subheading 6104.63.2030, HTSUS, respectively.

You assert that the garment is a skort classified as and “other garment” under subheading 6114.30.3070, HTSUS.

FACTS:

In NY I88505, a description of the garment reads as follows:

Style 0308 is described as a “Cycling Skirt” and consists of a skirt and attached shorts constructed from 100 percent polyester knit fabric. The pull-on shirt is a wrap skirt permanently attached at the waistband, with a
hemmed bottom. The pull-on shorts have a padded crotch and elasticized leg openings. The garments are attached to each other by means of small loops on each side, on the inner portion of the skirt and the outer portion of the shorts. Since the garments may be easily detached without damage, the skirt and shorts will be classified separately.

ISSUE:

Are the shorts and skirt classified as separate garments under heading 6104, HTSUS, or as a single garment under heading 6114, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Heading 6104, HTSUS, 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), knitted or crocheted.” Heading 6114, HTSUS, provides for “Other garments, knitted or crocheted.”

The importer describes the construction of the “skort” as follows:

The Tango Cycling Skort is constructed using stretch materials. The combination of the stretch characteristics of the materials and the position of the body on the bike require a special construction. We call this construction a “floating liner” and we use it in all of our double shorts and in this case, a skort. This construction secures the short in place in the side seam without having to sew it into the waistband. This allows the short to fit in a natural position when sitting on a bike. If a liner short is sewn into a waistband and the cyclist is sitting on the saddle of a bike, the short naturally is pulled down in the back side, revealing too much skin . . . That is the reason behind the construction. It allows the short to fit close to the body and keep the chamois (pad) in position. The outer layer (the skirt) sits in a natural position on the body and fully covers the short underneath. This unique construction also allows us to provide a non-binding waistband that eliminates bulky discomfort. These items are not meant to be worn separately or become detached in any way.

In your letter, you reference two ruling letters (HQ 950846, dated April 8, 1992, and NY J83373, dated May 1, 2003) to support your position that the cycling skirt and shorts are classifiable under subheading 6114.30.3070, HTSUS, as a single cycling garment. In those cases, both garments had a lining of chamois leather or synthetic chamois sewn into the crotch and seat of the shorts. Neither garment had an attached skirt. Moreover, in both rulings we found that the garment would only be worn while riding a bicycle.

More specifically, In HQ 950846 we stated:

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 [sic], 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.

Unlike the cycling shorts in HQ 950846 and NY J83373, the cycling shorts at issue are not impractical for any other purpose than cycling. The chamois insert does not restrict movement, is not bulky and would not be uncomfortable to the wearer. Additionally, the advertising material you provided states that the “Tango Cycling Skort” is “[a] fun alternative to traditional bike shorts. The Tango cycling skort conceals a technical cycling short underneath a flattering skirt.” This language suggests that the “Tango Cycling Skort” is intended to be fashionable, as opposed to strictly utilitarian.

Therefore, we conclude that the “Tango Cycling Skort” is not a special article of apparel used for certain sports under heading 6114, HTSUS.

Note 13 to Section XI, HTSUS, reads:

Unless the context otherwise requires, textile garments of different headings are to be classified in their own headings even if put up in sets for retail sale.

In accordance with Note 13, CBP has consistently classified garments which are tacked together and which may be easily separated as two separate garments. See NY 865712, dated August 23, 1991, and NY 866670, dated September 11, 1991 (Two women’s tops attached by means of a single row of stitching at the shoulders were classified under subheading 6106.10.0070, HTSUS (outer garment), and subheading 6114.20.0010, HTSUS (inner garment); NY B87127, dated July 11, 1997 (A dress and slip that were tacked together at the shoulders were classified separately under subheading 6204.44.4010, HTSUS (dress), and subheading 6108.19.9010, HTSUS (slip); NY B86492, dated August 6, 1997 (Two dresses tacked together at the shoulders were both classified separately under subheading 6204.44.4010, HTSUS).

The features shared by the garments in the above-cited rulings were that they could be easily separated without damage to either garment and resulted in two complete garments.

Furthermore, the garments in this case are distinguishable from garments referred to as “skorts” which CBP has classified as a single garment under heading 6114, HTSUS, in prior rulings. In those rulings, the garments consisted of shorts with an additional piece of fabric sewn into the right seam that extended across the front of the garment and attached to the left front waistband with a
closure. When viewed from the front, the garment looked like a skirt. See NY H86639, dated February 11, 2002; NY G83829 August 11, 2000; NY I86614, November 7, 2002.

Based on the foregoing, we find that the submitted sample consists of a pair of shorts and a skirt that are attached together with small loops. We further find that the skirt and shorts can be easily separated (i.e., by cutting the loops), without damaging either garment.

HOLDING:

NY I88505 is AFFIRMED.

The skirt is classified under subheading 6104.53.2010, HTSUS. It is dutiable at the general column one rate at 16.1 percent ad valorem, and the textile restraint category is 642.

The shorts are classified under subheading 6104.63.2030, HTSUS. They are dutiable at the general column one rate at 28.4 percent ad valorem, and the textile restraint category is 648.

The designated textile and apparel category may be subdivided into parts. If so, the 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 your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is available now on the CBP website at www.cbp.gov.

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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon
Director, Commercial Rulings

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