HQ 955479: 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.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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