CLA 2 RR:CR:TE 960904 SG
Dave Lester, Vice President, Marketing
Quiksilver The Wetsuit
1725 Monrovia
Costa Mesa, CA 92627
RE: Classification of Men’s LYCRA Shirts and Shorts; Headings 6110 and 6114, 6103
Dear Mr. Lester:
This is in response to your letter of June 12, 1997, in which you request a binding classification ruling of men’s LYCRA or rash guard shirts and shorts from Thailand. You indicate that the principal use in the United States is for wear under surfing wetsuits to protect against rash or for wear alone for sun protection and warmth while in the ocean. A number of samples were submitted.
FACTS:
The sample identified as Style E.PP32A is a men’s finely knit pullover garment which is constructed of 91 percent polypropylene and 9 percent spandex fabric. The top has short hemmed raglan sleeves; a mock turtleneck collar, and a printed logo on the center chest. The top also has a hemmed bottom.
The sample identified as Style E.PP33A is a men’s finely knit pullover garment which has a fiber content of 90 percent polypropylene and 10 percent spandex. The top has short raglan sleeves with self fabric cuffs; a turtleneck collar, and a printed logo on the center chest. The top also has a hemmed bottom.
Style E.PP34A is a men’s finely knit pullover garment which is constructed of 91 percent polypropylene and 9 percent spandex fabric. The top has long raglan sleeves with self fabric cuffs; a mock turtleneck collar, and a printed logo on the center chest. The top also has a hemmed bottom.
Style E.PP36A is a men’s finely knit pullover garment which is constructed of 91 percent polypropylene and 9 percent spandex fabric . The top has long raglan sleeves with self fabric cuffs; a turtleneck collar, and a printed logo on the center chest. The top also has a hemmed bottom.
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Style E.PP35A is a men’s pair of finely knit shorts. The shorts, with the exception of two inserts on the front panel, are constructed of 91 percent polypropylene and 9 percent spandex fabric. The inserts are constructed from 82 percent nylon and 18 percent spandex knit fabric. The garment has an elasticized waist with an inner drawstring and hemmed leg openings. The shorts do not have an inner liner.
ISSUE:
Are the rash guard tops classified in Heading 6110, HTSUS as pullovers, the rash guard shorts classified in Heading 6103 HTSUS as shorts, or are the tops and shorts classified as other garments in Heading 6114, HTSUS?
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 taken in their appropriate
order. Customs seeks guidance in interpreting the terms of the headings in the Harmonized Commodity Description and Coding System Explanatory Notes (EN), which although not legally binding, are recognized as the official interpretation of the Harmonized System at the international level.
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
OR
Heading 6114 Other garments, knitted or crocheted
The questions here are whether the instant samples are classified as ordinary garments in Heading 6110 for the pullovers and Heading 6103 for the shorts or as "other clothing" in Heading 6114? Since Heading 6114 is a basket provision, the tops are classified in Heading 6110 as pullovers and the shorts in Heading 6103 as shorts unless they are excluded from those provisions for some reason.
The Explanatory Notes (EN), the official interpretation of the tariff at the international level, state regarding Heading 6114:
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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 skirts, 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. See HQ 951627 dated August 14, 1992.
You believe that these garments are specific to the sport of surfing and are designed to be functional for that sport. You indicate that the “rash guard” garments are worn over the body while surfing and designed to provide rash and sun protection and extra warmth while in the ocean.
Providing warmth to the body and protection against sun is a benefit of any article of clothing. Such protection is necessary for many sports and not unique to surfing. Other than the fact that the garments provide coverage, which naturally provides sun protection, we find no evidence that these garments are specially designed or constructed to provide warmth or protection against the sun and wind while engaging in the specific sport of surfing. It is our view that a tight fitting upper body garment, such as the samples submitted, would be beneficial in almost any water sport, from canoeing to white water rafting, where vigorous arm movements and swimming in rough water is expected.
A number of the garments are constructed with high percentages of spandex-like fibers, which provide a tight fit. Neither the close fitting shape of the garments nor the high percentage of “spandex” used in the fabric distinguish the garments from other athletic wear, exercise wear, or even today’s fashion wear. The use of high percentages of spandex is a current fashion trend.
Accordingly, it is our view that the use of high percentages of spandex in the garments at issue does not serve to distinguish these garments from other athletic, exercise, or fashion wear.
A number of rulings provide guidance of the type of garment included in heading 6114. In HQ 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 HQ 950846 of April 8, 1992, we ruled that cycling shorts having a padded chamois insert in the seat and crotch area to prevent chafing were special articles of apparel used in riding
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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. This ruling distinguished the padded
bike shorts from unpadded styles indicating that the unpadded bike shorts “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.”
Garments which have previously been classified in heading 6114 contain special features which render them unique for a particular sport. The garments at issue here contain nothing to distinguish them from general purpose sports or water sports shirts or ordinary garments. They are not made in a special fashion, nor do they possess any special features which would make
them uniquely suited for the sport of surfing. We do not believe that the mere fact that they offer warmth as well as sun protection or even protection from chafing is sufficient to consider the garments unique to surfing, or designed for any particular sport. Such protection is necessary in many sports and is not unique to surfing. Essentially, the garments provide warmth and sun protection in the form of body coverage, but such coverage can be provided by any closely knit garments.
We note that in HQ 960833 dated November 12, 1998, we ruled on similar rash guard garments. It was our view that neither the garments themselves nor the styling or construction features stated by the importer, were so specialized for the sport of surfing that those garments should be considered “special articles of apparel” for the sport of surfing.
HOLDING:
We find that the tops are specifically provided for under the provision for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man made fibers: Other: Other: Other: Other: Men’s or Boys’” in subheading 6110.30.3050, HTSUSA, with a general column one duty rate of 33.3 percent ad valorem, textile quota category 638.
The shorts are specifically provided for under the provision for “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Trousers, breeches and shorts: Other: Shorts: Men’s or Boys’” in subheading 6103.43.1550, HTSUSA, with a general column one duty rate of 29.3 percent ad valorem, textile quota category 647.
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 negotiations and changes, we suggest that your client 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.
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Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should be advised that he
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
Commercial Rulings Division