CLA-2 CO:R:C:T 950846 SK
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
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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.
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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.
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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
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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
Commercial Rulings Division