OT:RR:CTF:FTM H262218 JER
Ms. Lisa Hampton
FTZ Compliance & Development
Fracht Forwarding, Inc.
150 Boush St.
Norfolk, VA 23510
RE: Revocation of NY N258826; classification of arm sleeves
Dear Ms. Hampton:
This is in response to your request of January 5, 2015, for reconsideration of New York Ruling Letter (“NY”) N258826, issued on November 24, 2014, to your client, T-Shirts International, concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). In NY N258826, U.S. Customs and Border Protection (“CBP”) classified the imported arm sleeves under heading 6117, HTSUS, in particular, under subheading 6117.80.9540, HTSUS, as, “Other made up clothing accessories: Other accessories: Other: Other, of man-made fibers: Other.” It is your contention that heading 6117, HTSUS, is not the proper heading and that it does not describe the merchandise at issue. You contend that the merchandise is properly classified under heading 9505, HTSUS, as a festive article. In reaching our decision, we considered the information presented in your January 5, 2015 submission as well additional information obtained during our research. For the reasons set forth below, we hereby revoke NY N258826.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on March 11, 2020, in Volume 54, Number 9, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
The merchandise at issue is a pair of arm sleeves marketed as the FANSLEEVE (hereinafter, “Fan-Sleeve”). The arm sleeves are composed of 85% polyester and 15% spandex knit fabric. The tapered sleeves measure 15 inches in length and are designed to be worn on each arm covering the top of the bicep, elbow, forearm and wrist area. The website of the producer of the subject arm sleeves, Pro-Sleeves, the parent company of FANSLEEVE, indicates that the fundamental use of the Fan-Sleeve is to provide compression support during training, fitness, exercise and other sports related activities. The sample submitted, along with images available on both Pro-Sleeves.com and Fansleeves.net, indicate that each of the varying arm sleeves bear a logo and/or mascot of one of the many National Collegiate Athletic Association (“NCAA”) sports teams (e.g., the University of Florida Gators, the Texas A&M Aggies, etc.). The retail labeling on the sample provided states: “Premium Fan Apparel for Game Day or Any Day.” In your January 5, 2015 submission, the Fan-Sleeve is described as being intended for use to celebrate or acknowledge [fan’s] enthusiasm and support for a particular team, sport or affiliation during various types of festivities as a novelty item.
ISSUE:
Whether the subject merchandise is classifiable under heading 6117, HTSUS, as a clothing accessory, or under heading 6307, HTSUS, as other made-up articles or under 9505, HTSUS, as a festive article.
LAW AND ANALYSIS
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 GRIs 2 through 6 may then be applied in order.
The 2019 HTSUS provisions under consideration are as follows:
6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted or parts of garments or of clothing accessories:
6117.80 Other accessories:
* * *
Other…
6117.80.95 Other…
Of man-made fibers:
6117.80.95.40 Other
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other…
6307.90.98 Other…
Other:
6307.90.98.89 Other…
9505 Festive, carnival or other entertainment articles, including magic tricks and practical jokes; parts and accessories thereof:
9505.90 Other:
9505.90.60.00 Other…
Chapter 95, Note 1 provides, in pertinent part, as follows:
This chapter does not cover:
* * *
(e) Sports clothing or fancy dress, of textiles, of chapter 61 or 62;
* * *
Chapter 90, Note 1 provides, in pertinent part, as follows:
Notes
This chapter does not cover:
* * *
(b) Supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, support for joints or muscles (section XI);
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to 63.07 states, in relevant part, that:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
It includes, in particular:
* * *
(26) Support articles of the kind referred to in Note 1(b) to Chapter 90 for joints (e.g., knees, ankles, elbows or wrist) or muscles (e.g., thigh muscles), other than those falling in other headings of Section XI.
* * *
The EN to 95.05 states, in relevant part, that:
This heading covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non durable material. They include:
(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.
(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche – heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.
* * *
In your request for reconsideration of NY N258826, you contend that the subject Fan-Sleeve “closely resembles” the tattoo sleeves of NY N012644, dated June 19, 2007 and NY L88410 dated, October 27, 2005, in which CBP classified tattoo sleeves under heading 9505, HTSUS, which provides for: “Festive, carnival or other entertainment articles, including magic tricks and practical jokes; parts and accessories thereof.” As such, you assert that NY N258826 incorrectly classified the subject Fan-Sleeves as clothing accessories under heading 6117, HTSUS, and that the subject Fan-Sleeves should be classified under heading 9505, HTSUS, as a festive article.
Initially we note that not all costume articles associated with entertainment or celebratory occasions are classifiable as “festive articles” under heading 9505, HTSUS. However, when addressing the classification of arm sleeves generally, CBP has previously determined that headings 6117, 6307 and 9505, HTSUS are implicated. See e.g., Headquarters Ruling Letter (“HQ”) 963734, dated March 28, 2003 and NY N276138, June 10, 2016 (wherein CBP determined that certain arm sleeves were classified under heading 6117, HTSUS). In determining the proper classification of arm sleeves, CBP has examined the design, use, and primary purpose of the arm sleeve.
As concerns “festive articles” of heading 9505, HTSUS, the United States Court of Appeals for the Federal Circuit (“CAFC”) noted that the lower court “correctly ruled that articles with symbolic content associated with a particular recognized holiday, such as Christmas trees, Halloween jack-o-lanterns, or bunnies for Easter, were festive articles.” Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 (2003); citing, Park B. Smith v. United States, 25 C.I.T. 506 (2001). Similarly, in Midwest of Cannon Falls v. United States, 122 F.3d, 1423 (Fed. Cir. 1997), the court held that classification as a “festive article” under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article is used or displayed principally during that festive occasion. Id, at 1429. The U.S. Court of International Trade further explained that the phrase "closely associated with a festive occasion" requires that “the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.” Park B. Smith v. United States, 25 C.I.T. 506, 2001 Ct. Intl. Trade LEXIS 71, 23 Int'l Trade Rep. (BNA) 1545, SLIP OP. 2001-63 Park B. Smith, 25 C.I.T. 506 (citing, Brookside Veneers, Ltd. v. United States, 847 F.2d 786 (Fed. Cir. 1988)).
Under our facts, the subject Fan-Sleeve is not associated with any particular holiday. It is neither symbolic of any annually celebrated occasion, nor is it associated with any particular festive event. Instead, the subject Fan-Sleeve can be worn daily and is closely associated with sports teams and everyday fitness activities, while having the capacity to provide compression support to the arm, elbow and wrist area. Accordingly, the Fan-Sleeve is marketed as being “Premium Fan Apparel for Game Day or Any Day.” An article which is amenable to use on “game day” or “any day”, cannot be said to be an article that is closely associated with a festive occasion because there are hundreds if not thousands of sports games and training activities occurring throughout the calendar year. Likewise, if the Fan-Sleeve can be worn on “any day” then the article is not used or displayed principally during any particular festive occasion of the kind discussed in Park B. Smith and Midwest. Hence, wearing a Fan-Sleeve arm cover during athletic training, exercise activities or during a sports event does not transform the subject article into a festive article as defined by the courts in in Park B. Smith and Midwest.
Furthermore, the subject Fan-Sleeve arm covers are not costumes or costume accessories akin to those found in NY N012644 and NY L88410. A costume is defined as being “an outfit worn to create the appearance or characteristic of a particular person, period, place or thing.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 2001). Hence, the primary purpose of wearing a costume is the act of creating a characterization, appearance, or impersonation.
Unlike the tattoo sleeves of NY N012644 and NY L88410, the wearing of the subject Fan-Sleeves does not give the appearance or impression that the wearer is anything other than a person participating in fitness training or that of a fan of a particular sports team. By contrast, wearing an arm sleeve that impersonates a tattoo is tantamount to wearing a costume or disguise. Hence, the tattoo sleeves of NY N012644 and NY L88410, by giving the appearance or impression that the wearer has tattoos on his or her arm, were determined to be a costume or an accessory to a costume. Moreover, the subject Fan-Sleeve arm covers are neither intended nor designed to deceive, characterize or impersonate a person, place or thing. As such, the subject Fan-Sleeves cannot be construed as being a costume for purposes of heading 9505, HTSUS.
Having eliminated the possibility of classification of the Fan-Sleeve under heading 9505, HTSUS, we now examine whether the sleeve is properly classified as a clothing accessory of heading 6117, HTSUS. In your submission, you state that the “tagline or slogan, ‘Wear Your Heart on Your Sleeve’ is a common phrase that does not indicate that the product is clothing or accessories of clothing.” In your statement, you opine that the subject Fan-Sleeve is not an accessory to any clothing item and is therefore not classifiable under heading 6117, HTSUS. We agree. Although the subject Fan-Sleeve can be worn in conjunction with a team jersey or other apparel associated with a team logo applied thereto, its fundamental design and purpose is not limited to use as a clothing accessory.
In HQ 963782, dated March 22, 2002, CBP addressed the distinction between clothing accessories of heading 6117, HTSUS, and other made up articles of heading 6307, HTSUS. In that regard, HQ 963782 noted that accessories must be related to or exhibit some connection to the primary clothing article and must be intended for use solely or principally as an accessory. For example, belts used as clothing accessories need not rely or depend on a particular article of clothing. However, they must clearly be intended for use solely or principally as an accessory to the clothing. Under our facts, there are no specific clothing articles for which the Fan-Sleeve is solely or principally used.
As we noted in HQ H281032, dated February 6, 2017, arm sleeves are often worn as fashion statements, even when a player or trainer does not have an injury. In HQ H281032, CBP noted that beyond any advantages related to compression or protective support, there is a placebo effect to wearing such sleeves, as some basketball players continue to wear them after an injury has healed to prevent future injuries. Steven Kotler, Allen Iverson, Kobe Bryant, and Basketball’s Placebo Effect, Psychol. Today, Apr. 17, 2008, https://www.psychologytoday.com/blog/the-playing-field/200804/allen-iverson-kobe-bryant-and-basketballs-placebo-effect, (last visited 03/28/2018). Yet, fashion statements, logos, and artistic designs applied to compression sleeves, do not alter the fundamental purpose and primary function of the sleeve.
Similarly, in HQ 950659, dated January 21, 1992, CBP revoked HQ 086378, dated April 9, 1990, which classified arm covers under heading 6117, HTSUS. In making its decision to rescind HQ 086378, CBP considered whether the arm covers had a logical nexus with clothing. In short, the analysis in HQ 086378 inquired whether the article added to the clothing’s: (1) beauty, (2) convenience, or its (3) effectiveness. In its determination, CBP examined the function and use of the arm covers and concluded that the arm covers could not be considered clothing accessories because they did not satisfy any of the three requirements. Based on the standard set out in HQ 963782 and HQ 950659, the record establishes that the subject Fan-Sleeves are not solely or principally intended to be used with any particular clothing item, and have no logical nexus to any other clothing article. Accordingly, we find that the subject Fan-Sleeves are not a clothing accessory and therefore do not meet the terms of heading 6117, HTSUS.
Hence, we turn to the remaining HTSUS heading for consideration, heading 6307, HTSUS. Heading 6307, HTSUS, is a residual provision for made-up textile articles that are not more specifically provided for in other headings of Section XI. See EN 63.07. The EN to heading 63.07, specifically states that the heading covers “support articles of the kind referred to in Note 1(b) to Chapter 90, HTSUS, for joints (e.g., knees, ankles, elbows or wrists) or muscles (e.g., thigh muscles), other than those falling in other headings of Section XI.” Note 1(b) to Chapter 90 defines “support articles” as being, “other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, supports for joints or muscles).”
The subject Fan-Sleeve is marketed, in part, as a compression sleeve with microfiber yarns that offer support. The Fan-Sleeve is marketed as having the capacity to “treat sore muscles.” Additional marketing states that “compression sleeves may help alleviate pain, recover faster from injuries, protect your forearms, and even improve blood circulation.” Likewise, compression arm sleeves are marketed as having the capacity to provide compression support to joints and muscles while their wearer is participating in physical fitness activities or athletic training. See FanSleeves at https://www.amazon.com/d/Sports-Fan-T-Shirts/FanSleeves-Nebraska-Cornhuskers-Clothing (last visited 11/08/2018); see also, Pro-Compression at https://procompression.com/collections/arm-sleeves.
(last visited 03/28/2018). In fact, the Wall Street Journal reports that at least 65% of National Basketball Association players wear at least one shooting sleeve (on their shooting arm) for support and protection; while 57% wear sleeves on one or two legs. Allen Iverson and the NBA’s Sleeve Revolution, Zolan Kanno-Younga, Wall Street Journal, 11/25/2015 https://www.wsj.com/articles/allen-iverson-and-the-nbas-sleeve-revolution-1448488382 (last visited 11/08/2018).
Additionally, CBP has previously classified substantially similar support sleeves under heading 6307, HTSUS, for the same reasons presented herein. See e.g., NY N240245, May 1, 2013; NY N057848, April 23, 2009; HQ 965110, May 21, 2002; and NY G80012, August 3, 2000 (wherein CBP classified arm sleeves as joint and muscle support articles under heading 6307, HTSUS). In NY N248199, dated December 12, 2013, for example, CBP classified a compression sleeve made up of 80% nylon and 20% spandex knit textile fabric designed to support joints and muscles under heading 6307, HTSUS. Likewise, in NY N221556, dated July 11, 2012, CBP classified a therapeutic compression arm sleeve under heading 6307, HTSUS, because the article was designed to provide compression support to the wearer’s arm. The arm sleeve in NY N221556 was constructed of 70% polypropylene and 30% elastane (spandex) knit textile fabric (referred to as “graduated compression” fabric). The aforementioned material used to construct the arm sleeve of NY N221556 is substantially similar to that which is used to construct the subject Fan-Sleeve (85% polyester and 15% spandex knit fabric).
Moreover, characteristics such as improved circulation, joint and muscle support, each fall squarely within the exemplars set forth in the ENs to heading 63.07. As previously noted, EN 63.07 specifically provides for articles such as the Fan-Sleeve in Note (26), i.e., support articles for joints of the knees, elbows or wrist. In this regard, CBP has previously classified similar support articles under heading 6307, HTSUS, utilizing the same analysis as offered here. In HQ 965234, dated December 5, 2001, for example, CBP classified a hinged knee support garment under heading 6307, HTSUS, reasoning that the hinged knee support garment was not an orthopedic appliance of heading 9021, HTSUS, or a body supporting garment of heading 6212, HTSUS. Instead, HQ 965234 determined that the hinged knee support was not covered by any more specific heading, and thus it was classifiable in heading 6307, HTSUS, as a support article as described in EN 63.07 Note (26). Likewise, HQ 952568, dated January 28, 1993, determined that knee and joint braces used for sprains and bursitis were properly classified in heading 6307, HTSUS, as they met the definition of support articles as described in Note 1(b) to Chapter 90, HTSUS.
Lastly, in HQ 964317, dated May 1, 2001, CBP classified a knee brace and an ankle brace in heading 6307, HTSUS. Much like the subject Fan-Sleeve, the knee and ankle braces of HQ 964317 were made up of 90% neoprene and 10% nylon elastic. Each brace was designed to allow normal joint bending yet restrict side to side movement during sport activities. As a result, CBP reasoned that the knee and ankle braces of HQ 964317 were support articles as described in EN 63.07. According to the facts of this case, we find the subject Fan-Sleeve to be substantially similar in design, function and in principal use to the aforementioned merchandise. As such, we find that the subject Fan-Sleeve meets the definition for support articles as set forth in EN 63.07 Note (26) and is therefore classified under heading 6307, HTSUS.
HOLDING:
By application of GRI 1 and Note 1(b) to Chapter 90, we find that the instant arm sleeve is provided for in heading 6307, HTSUS, specifically, under subheading 6307.90.98.89, HTSUS (Annotated), which provides for: “Other made up articles, including dress patterns: Other: Other: Other: Other.” The 2019 column one, general rate of duty is 7% ad valorem.
EFFECT ON OTHER RULINGS:
NY N258826, dated November 24, 2014, 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,
Craig T. Clark, Director
Commercial and Trade Facilitation Division