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HQ 967042




June 7, 2004

CLA-2 RR:CR:TE 967042 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3060

Sandra Liss Friedman,
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Classification of two styles of men’s bike shorts

Dear Ms. Friedman:

This is in response to your letter, dated February 13, 2004, in which you requested a binding classification ruling on certain men’s bike shorts with bibs under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The origin of the goods is Thailand. Your request, along with two samples, was sent to our office for our reply.

FACTS:

The bike short with bib, identified as style number 230805 (H20115), is a lower body garment with an attached mesh bib which consists of oversized armholes with a deep scoop neckline in the front and the rear which leaves the chest and back of the wearer exposed. This garment has a low, scooped-out, see-through neckline and is not intended to be worn alone, but with another garment on top, preferably the “team cycling jersey” as pictured in the submitted brochure. The bib portion is 79 percent Coolmax™ and 21 percent Lycra™. Extending to the mid-thigh area, the lower portion of the garment is composed of four way stretch knit fabric composed of 80 percent Coolmax™ polyester and 20 percent Lycra™, which has wicking characteristics to absorb perspiration. The garment also features compression molded, variable density chamois padding in the buttocks and genital area that reduces irritation when cycling.

In addition, the garment uses single-ply fabric and double-ply components. The single-ply fabric is easily stretched, whereas the double-ply fabric requires substantially more force to stretch. The double-ply fabric components are located at the top and thigh area to support the front of the thighs and the hips along the muscle bands.

Style number 230806 (230816) is a three quarter length bike pant with bib that is constructed of similar materials as style number 230805 and features a similar bib construction and seat padding. The difference between the two styles of garments is that style 230805 extends below the knee area and has two-ply components to encircle and support the knee area, in addition to supporting two-ply panels for the hips and thighs. You indicate that both garments are body-supporting garments that are classifiable in heading 6212, HTSUS.

You stated that the double-ply construction has the effect of simulating the taping of muscles and joints, thereby obviating the need for taping or using a brace during physical activity. You provided a list of style numbers that will be used to identify the garments. You stated that the submitted samples are made up for sale in the Japanese market and do not conform to U.S. marking and labeling laws. However, you indicate that the imported article will be marked and labeled in accordance with U.S. law.

You also stated that the two garments have unique pieced fabric construction that is designed to enhance performance in biking, which involves significant aerobic muscle stress, as well as allow for faster cooling and absorption of perspiration, which is beneficial to the athlete.

ISSUE:

Whether the subject articles are classifiable as body supporting garments of 6212 or as other garments of heading 6114, HTSUSA?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. When goods cannot be classified solely on the basis of GRI 1 and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.

Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The competing headings for classification of the subject merchandise are headings 6212, HTSUS, which provides for “brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof” and heading 6114, HTSUS, which provides for “other garments, knitted or crocheted.” Explanatory Note 61.14 states, in pertinent part, that: “this heading covers knitted or crocheted garments which are not included more specifically [emphasis added] in the preceding headings of this Chapter.” EN 62.12 states, in pertinent part, that “this heading covers articles of a kind designed for wear as body-supporting garments or as supports for certain other articles of apparel, and parts thereof.”

You submit that the subject merchandise is classifiable in heading 6212, HTSUS, because the double-ply fabric components used in the subject merchandise are designed to support the front of the thighs and hips along the muscle bands in lieu of taping the user’s thighs. In your submission, you also stated that your client has invested considerable effort in designing the goods in a particular manner to enhance athletic performance. Further, you provide documentation about the goods’ patented design that gives detailed information about the garment’s unique construction.

In support of your position that heading 6212 is correct for classifying the goods, you rely on two previous rulings issued by CBP to your client, Headquarters Ruling Letters (HQ) 966804, dated January 13, 2004, and HQ 965621, dated October 16, 2002. In HQ 966804, CBP classified a men’s long sleeve Conditioning Wear pullover made of 80 percent Coolmax™ polyester and 20 percent Lycra™ spandex mesh-like fabric in subheading 6212.90.0030 due to substantial evidence that the article functions as a body supporting garment and provides enhanced athletic performance by supporting specific muscles in the upper body during physical activity. Additionally, the garment provides easier arm movement and improved respiratory function during inhalation without undermining the movement of the spinal column.

In HQ 966804, the competing headings were 6110 and 6212, HTSUS. CBP also considered heading 6114, but determined that the provision was inapplicable based on two reasons: First, heading 6114 is a basket provision that is intended to cover knitted garments not included more specifically in the preceding headings of Chapter 61. Second, the EN to heading 6114 includes, inter alia, “special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts, leotards)”. The article of HQ 966804, supra was not marketed for just one specific sport, but for performance enhancement in various athletic activities, including running. Consequently, heading 6212 more specifically provided for the good, and CBP classified the merchandise therein.

In the case of HQ 965621, CBP classified three corresponding men’s lower body garments made from the same fabric as the upper body garment of HQ 966804 in heading 6212, HTSUS. In HQ 965621, CBP determined that the supporting fabric panels used in the three lower body garments were designed to support a localized area—the lower body muscles, joints and tendons. Further, CBP noted that although the merchandise was designed to be worn as outerwear, the three styles’ function and design centered on providing support to muscles, joints and ligaments of the legs during physical activity.

The distinction between the instant garments and those in the aforementioned rulings is that the instant goods’ function and design involves providing support and protection to certain areas. First, the shorts support a localized area--the legs-during cycling; they do not provide support to the entire area covered by the garment. As the support is limited to a particular area of coverage and not throughout the entire garment, the merchandise is precluded from classification within heading 6212, HTSUS. Second, the chamois padding provides protection and additional fit to the genital and buttock area during rigorous sports cycling. The padding also renders the garment impractical for any other purpose other than cycling. As this garment is designed, marketed and sold for cycling activities, it is classifiable in heading 6114. In addition, CBP has classified similar biking shorts that were specifically designed for cycling in heading 6114, HTSUS. See HQ 950846, April 8, 1992 (classifying nylon cycling shorts with chamois insert sewn to crotch and seat in heading 6114, HTSUSA.)

Based on the reasons previously discussed, we find the subject merchandise is classifiable in subheading 6114.30.3060, HTSUSA, which provides for “other garments, knitted or crocheted: Of man-made fibers: Other, Other: Mens’ or boys’.”

HOLDING:

The bike short with bibs, identified as style numbers 230805 (H20115) and 230806 (230816) are classifiable in subheading 6114.30.3060, HTSUSA, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Men’s or boys’.” The general column one rate of duty is 14.9 percent ad valorem, quota category number 659.

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 now available 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 the local CPB 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 Division

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