CLA-2 RR:CTF:TCM 967620 BtB
Ms. Ann M. Williams
A.N. Deringer, Inc.
30 West Service Road
Champlain, NY 12919-9703
Re: Classification of hockey accessory kit; NY 854193 revoked
Dear Ms. Williams:
On August 6, 1990, the U.S. Customs Service, now known as the Bureau of Customs and Border Protection (CBP), issued New York Ruling Letter (NY) 854193 to you on behalf of Holmont Industries, Ltd. In NY 854193, CBP found that four articles packaged together as a “junior hockey accessory kit” did not comprise a set under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) and were, therefore, classified separately under the HTSUSA as follows: an athletic supporter with protective cup, garter belt, and suspenders were each individually classified in subheading 6212.90.0030, HTSUSA, which provides for: “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other, Of man-made fibers or man-made fibers and rubber or plastics;” and shin guard straps were individually classified in subheading 6307.90.9590, HTSUSA, which provides for: “Other made up articles, including dress patterns: Other: Other: Other.”
We have reviewed NY 854193 and have determined that the classification of the articles in the junior hockey accessory kit is incorrect. This ruling sets forth the correct classification of the articles.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY 854193 was published in the Customs Bulletin, Volume 39, Number 30, on July 20, 2005. CBP received one comment during the notice and comment period. This comment recommended a small language change in regard to the characterization of the sliding pads in the shorts that are the subject of Headquarters Ruling (HQ) 967622 and did not pertain to the merchandise at issue in the instant ruling.
FACTS:
In NY 854193, the articles in the junior hockey kit were described as follows:
Your first submitted sample, is a textile athletic supporter imported with a protective cup. The athletic supporter is constructed of a 1 1/2 inch elasticized man-made fiber waistband, 3/4 inch elaticized (stet.) leg straps, and a front pouch that holds the protective cup. The cup is plastic with a rubber-like cushioned edge. If the cup is imported with the supporter it is considered as a part of the supporter and classified as such. If the cup was imported alone, it would be classified under chapter 95.
Your second submitted sample is a garter belt of elasticized man-made fiber, one inch wide and secured by a metal buckle. The belt has four metal and plastic garter grips attached to two 3 inch long elasticized straps that are sewn onto the belt. The third sample is suspenders of elasticized man-made fibers with adjustable straps, metal buckles, and is attached to the pants by vinyl inverted U-shaped fasteners with a place for the buttons at the bottom of the U. The last sample is four shin guard straps that attach a shin guard to the player's leg. The straps are 3/4 inch wide and 12 inches long with a hook and loop closure.
While not stated in NY 854193, the suspenders and garter belt are specifically designed for hockey. The suspenders are specifically designed to attach to hockey pants with their U-shaped fasteners and the garter belt is specifically designed to hold hockey hose. As a consequence, the suspenders and garter belt are only suitable to be worn while playing hockey and not as normal wearing apparel.
ISSUE:
Whether the articles in the hockey accessory kit comprise a set under the HTSUSA. If the articles do comprise a set, what is the classification of the set under the HTSUSA?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The hockey accessory kit consists of four individual components. The kit cannot be classified pursuant to GRI 1 because the components are classifiable in different headings (the headings covering each article if imported separately are set forth below). Since no single heading describes all of the products in the accessory kit, the components must either be considered as a set under GRI 3(b) or classified individually.
The components constitute "goods put up in sets for retail sale" if they satisfy the criteria set forth in EN (X) to GRI 3(b). Under this EN, goods are classified as sets put up for retail sale if they:
(a) consist of at least two different articles which are, prima facie,
classifiable in different headings …. ;
(b) consist of products or articles put up together to meet a particular
need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without
repacking (e.g., in boxes or cases or on boards).
In this instance, the goods are prima facie classifiable in at least two headings. They are put up together to equip a hockey player. Each of the articles in the kit will be worn while playing. The goods are packaged together as a “junior hockey accessory kit” in a manner suitable for direct sale to the consumer. In light of the above, we find that they constitute “goods put up in sets for retail sale” and are classifiable accordingly pursuant to GRI 3(b).
In order to determine the essential character of the goods put up in the set, we look to EN VIII to GRI 3(b), which provides the following guidance:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
In this case, each of the goods in the accessory kit serves a unique and important purpose. Each article protects a player or helps to keep equipment or clothing securely in place. For this reason, we find that no component imparts the essential character to the set.
GRI 3(c) provides that: “When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” The headings that equally merit consideration are the headings covering the components in the set if they were imported individually. In this instance, the hockey garter belt and the hockey suspenders in the set are individually classified in heading 6212, HTSUSA, which provides for: “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted.” Additionally, the hockey shin guard straps in the set are individually classified in heading 6307, HTSUSA, which provides for: “Other made up articles, including dress patterns.” And, pursuant to the analysis set forth below, the athletic supporter with protective cup is classified in heading 9506, HTSUSA, which provides for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports .…” Of the three headings meriting consideration, heading 9506, HTSUSA, covering the athletic supporter with protective cup, occurs last.
Heading 9506, HTSUSA, provides for “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in [Chapter 95]; swimming pools and wading pools; parts and accessories thereof.” Sports clothing, alternatively, is classified in Chapter 61 or 62, HTSUSA. Note (e) to Chapter 95, HTSUSA, specifically excludes sports clothing of chapter 61 or 62, HTSUSA, from classification in Chapter 95. Conversely, note 1(t) to Section XI, HTSUSA, excludes “Articles of Chapter 95” from classification in Section XI, HTSUSA, the section of the HTSUSA containing Chapter 61 and Chapter 62.
The ENs to heading 9506 state that the heading covers three categories of merchandise: (A) Articles and equipment for general physical exercise, gymnastics or athletics; (B) Requisites for other sports and outdoor games; and (C) Swimming and paddling pools. The ENs to the heading specifically state that category (B) includes: “Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards.”
In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir., 2004), hereinafter referred to as “Bauer,” the Court of Appeals for the Federal Circuit (CAFC) found two styles of hockey pants with textile shells and interior assemblies of hard plastic guards and soft pads to be more specifically described as sports equipment under heading 9506, HTSUSA, than as sports clothing in Chapter 62, HTSUSA. As a consequence, the CAFC found that the articles were excluded from classification as sports clothing in Chapter 62, HTSUSA, pursuant to Note 1(t) to Section XI, and classified the pants in heading 9506, HTSUSA, as sports equipment.
In light of the Bauer decision, textile articles worn on the person while participating in sports, incorporating guards, pads, or foam are now evaluated on a case-by-case basis. Articles of this nature will be classified as protective sports equipment in heading 9506, HTSUSA, if they are primarily worn for protection during sports and afford protection akin to the exemplars set forth in the EN to heading 9506. Generally, they will incorporate thick non-textile protective guards or pads that are designed exclusively for protection against injury, that is, having protective features with the sole or primary function of directly absorbing the impact of blows, collisions, or flying objects. Generally, these non-textile protective guards will be non-removable or specially-fitted to be inserted into textile parts of the articles, made of hard plastic or thick foam, and make them impractical to use as everyday wearing apparel.
Articles of this nature not primarily worn for protection during sports (e.g., articles worn for comfort, etc.) or offering only minimal protection (with only textile or insubstantial non-textile padding) will generally not meet this criterion. Such articles do not provide protection akin to the exemplars set forth in the EN to heading 9506 and, therefore, are not classified as sports equipment. Rather, such articles are among the articles for use in sports not intended to be classified under heading 9506, HTSUSA. They will generally be classified as sports clothing in Chapter 61 or 62, HTSUSA.
The athletic supporter with protective cup is primarily worn for protection during sports and affords protection akin to the exemplars of heading 9506. It incorporates a hard plastic protective cup designed exclusively to protect the groin against injury by absorbing blows, collisions, or flying objects while playing hockey. This protective cup is specially-fitted to the front pouch on the athletic supporter. The features of the article makes it especially suited for sports and impractical to use as everyday wearing apparel. Accordingly, we find that the athletic supporter with protective cup is classified in heading 9506, HTSUSA.
HOLDING:
The four articles packaged together as a “junior hockey accessory kit” comprise a set under the HTSUSA. The kit is classified pursuant to GRI 3(c) in subheading 9506.99.6080, HTSUSA, which provides for, among other articles, “Articles and equipment for general physical exercise, gymnastics, athletics, other sports … : Other: Other: Other, Other.” While the articles in the kit have been put up together to meet the need of equipping a hockey player, the article on which classification of the set is based, the athletic supporter with protective cup, is used generally in athletics and sports, not solely or principally in hockey. Accordingly, the set is not classified in the subheading covering hockey equipment (9506.99.2580, HTSUSA). The applicable column one, general duty rate under the 2005 HTSUSA is 4 percent ad valorem.
EFFECT ON OTHER RULINGS:
NY 854193, dated August 6, 1990, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Trade and Facilitation Division