HQ H274971
CLA-2 OT:RR:CTF:TCM H274971 TSM
Carlos Maldonado
Norman Krieger, Inc.
921 W. Artesia Blvd.
Rancho Dominguez, CA 90220
RE: Revocation of NY N007196 and NY N052472; Modification of NY M80510; Tariff Classification of football girdles and pants.
Dear Mr. Maldonado:
This is in reference to New York Ruling Letter (NY) N007196, issued to Wind Enterprises, Inc. on February 27, 2007, concerning the tariff classification of football girdles. This is also in reference to NY M80510, issued to Morningstar Corporation on March 21, 2006, and NY N052472, issued to Under Armour on March 6, 2009. In those rulings, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise under heading 9506, HTSUS, which 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 this chapter; swimming pools and wading pools; parts and accessories thereof.” Upon additional review, we have found this classification to be incorrect. For the reasons set forth below we hereby revoke NY N007196, NY N052472 and modify NY M80510.
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. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 51, No. 15, on April 12, 2017, proposing to revoke NY N007196 and NY N052472, modify NY M80510, and to revoke any treatment accorded to substantially identical transactions. One comment opposing the proposed action was received on May 11, 2017, and one comment opposing the proposed action was received on May 12, 2017. The two comments received are addressed below.
FACTS:
NY N007196, describes the subject merchandise as follows:
The sample merchandise is a youth seven-pad full-length football girdle. The girdle is constructed of Polypropylene sheet with seven EVA foam pads sewn into polyester pockets.
NY M80510, describes the subject merchandise as follows:
Style Padding Pants Football Garment is constructed of knit 92% polyester, 8% spandex fabric. The pant extends to just below the knee and features a double D-ring closure and tunnel elastic leg openings. The garment has seven (7) permanent non-textile protective pads of thick rubber or rubber and hard plastic that protect the tailbone, hips, front of the thighs and knees.
NY N052472, describes the subject merchandise as follows:
Style 1002481 is the MPZ Touchdown Pant made in China. It is a boy’s football pant made of 92% polyester and 8% elastane that extends to just below the knee. It contains six permanent protective pads of thick foam and hard plastic that protect the hips, front of the thighs and knees. One specially fitted thick foam pad used to protect the tailbone is removable. These pads are designed for protection against injury with their sole function of directly absorbing impacts, blows or collisions while playing football.
ISSUE:
What is the tariff classification of the subject football girdles and pants?
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 HTSUS provisions under consideration are as follows:
6114 Other garments, knitted or crocheted
* * *
9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof
* * *
Section XI Note 1(t) states that “[t]his section does not cover: Articles of chapter 95 (for example, toys, games, sports requisites and nets).” Section XI includes chapter 61, HTSUS. Therefore, by operation of Note 1(t), if the subject merchandise is properly classifiable in chapter 95, HTSUS, then it is precluded from classification in chapter 61, unless it is covered by Note 1(e) to Chapter 95, which excludes “Sports clothing or fancy dress, of textiles, of chapter 61 or 62.”
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to 95.06 states in relevant part:
This heading covers:
* * *
(B) Requisites for other sports and outdoor games …
* * *
(13) Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads.
It goes on:
This heading excludes:
* * *
(e) Sports clothing of textiles, of Chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin area (e.g., fencing clothing or soccer goalkeeper jerseys).
* * *
The Court of Appeals for the Federal Circuit (CAFC) has issued several opinions considering the tariff term “sports equipment.” The framework crafted in those opinions guides CBP’s analysis and ruling here.
In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1236 (Fed. Cir. 2004), the CAFC addressed the classification of padded sports pants that not only were “specially designed and intended for use only while playing ice hockey,” it “protected the wearer from injury by absorbing and deflecting blows, collisions, and flying objects in areas where serious injury may occur,” because it included “an interior assembly of…hard plastic guards and soft…foam padding” that collectively accounted for “about 80% of the total weight of the hockey pants.” Id at 1248. Thereafter, and in light of the Bauer decision to classify the hockey pants as “sports equipment” of heading 9506, HTSUS, rather than as sports clothing of chapter 61 or 62, CBP began to evaluate padded sports clothing on a case-by-case basis.
The CAFC revisited these two headings when considering motocross outerwear, jerseys, pants, and jackets, in LeMans Corp. v United States, 660 F.3d 1311 (Fed. Cir. 2011). There the Court observed that while the merchandise was “designed exclusively for use in a particular sport,” id. at 1319, and it contained padding that accounted for up to 50% of the total weight of the jerseys, pants, or jackets, ultimately the motocross merchandise was not akin to the exemplars contained in the ENs, which “are almost exclusively used for protection and would complement, or be worn in addition to, apparel worn for a particular sport.” Id. at 1322. In crafting a standard moving forward, the CAFC concluded, “to the extent ‘sports equipment’ encompasses articles worn by a user, [the exemplars in the EN] are not apparel-like and are almost exclusively protective in nature.” Id. at 1320. [Emphasis added]
Most recently, the CAFC applied the combined standards of the above noted cases to football jerseys, pants, and girdles, in Riddell, Inc. v. United States, 754 F.3d 1375 (Fed. Cir. 2014). Specifically, the pants and girdles at issue in Riddell were described as follows:
The pants, made of polyester and spandex, end just below the knee and have elastic leg openings. They contain four interior pockets to hold protective pads - two thigh pads and two knee pads. In tandem with a girdle, the pants also help secure three additional pads around a player's waist - two hip pads and one tail pad. The pants are tailored to wear with the protective pads.
The girdles, made of polyester, are worn beneath football pants and extend from the waist to the thigh. They have several internal pockets to hold hip and tail pads. They function, together with the pants, to hold padding in place.
The merchandise in Riddell lacked the “transformative elements that were key in Bauer.” Id. at 1380. Given this deficiency, the products had not lost their character as clothing as it is ordinarily understood. Relevant to this analysis, we emphasize that the CAFC noted an exception, stating, “A narrow exception exists for an item that, as imported, contains a character-transforming amount of material not ordinarily found in mere body-covering clothing that functions to provide forms of protection not inherent in common body coverings, e.g., protection against impacts that readily propagate beneath the skin.” Riddell, supra at 1380.
We note that the instant football pants are different from the pants in Riddell because these pants have pads which are permanently sewn in. We further acknowledge that the protective pants and girdles at issue are specially designed and manufactured to protect against targeted blows and abrasions to the body specific to the sport of football. However, the merchandise considered in LeMans Corp. v United States, supra, which included motocross jerseys, motocross jackets and motocross pants, were also found to be designed exclusively for use in a particular sport, Id. at 1319. The CAFC held that the merchandise was prima facie classifiable as apparel, and further, chapters 61 and 62 “do not distinguish between apparel designed for general or specific uses,” which is indicated by its inclusion of “track suits, ski-suits[,] and swimwear.” Id at 1317.
While the material and location of the padding may lend the instant pants and girdles to a particular use, for example, while playing football, it does not cause them to be something other than apparel. They have not been so transformed as to lose their character as “apparel.”
This analysis is consistent with the ENs to 95.06, specifically the protective exemplars in the EN 95.06(B) which includes therein, fencing masks, breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads. These exemplars refer to items worn by a user almost exclusively for protection. They do not include articles that are apparel-like; rather, they are articles that have minimal textile components. They are distinguishable from the protective pants and girdles at issue here, and for these reasons, the pants and girdles at issue are not “sports equipment” within the scope of heading 9506, HTSUS.
Therefore, as the subject protective pants and girdles are covered by Note 1(e) to Chapter 95, they are excluded from classification as sports equipment of heading 9506, HTSUS. They are properly classified as “other garments” of heading 6114, HTSUS. See HQ H251142, dated May 29, 2015.
As noted above, we received two comments opposing the proposed revocation of NY N007196, NY N052472 and modification of NY M80510. One commenter argued that the football girdles and pants at issue should be classified in subheading 9506.99.20, HTSUS, as protective sports equipment, since they are most similar to the hockey pants at issue in Bauer Nike. In support of its position, the commenter argued that the football girdles and pants at issue are more similar to hockey pants than to motocross apparel with isolated padding or non-padded football pants, are predominantly of non-textile padding throughout, and have a character-transforming amount of material for protection beyond typical apparel. In this regard, we note that there is no evidence that the protective pads, found in the garments at issue in the above-referenced rulings, comprise about 80% of the total weight of the garments as was the case in Bauer Nike. Moreover, consistent with the above analysis, we do not find that the amount of protective padding material found in the garments at issue is sufficient to transform its character from “apparel” to “protective sports equipment.”
One other commenter argued that the pants at issue in NY M80510 should be classified in heading 9506, HTSUS, since they are clearly distinguishable from the motocross pants, jackets, and shirts at issue in LeMans. The commenter further contended that it is not the case that the exemplars referenced in the ENs to heading 9506, HTSUS, do not cover pants that are “apparel-like,” since “ice hockey pants with built-in guards and pads” are specifically included in the ENs. In this regard, we note that although we agree that the pants at issue in NY M80510 are different from those at issue in Lemans, as stated above we do not find that they have been transformed into “protective sports equipment.” With regard to the “ice hockey pants with built-in guards and pads” specifically referenced in the ENs to heading 9506, HTSUS, we note that this exemplar covers hockey pants that have been transformed from “apparel” to “protective sports equipment,” such as the hockey pants at issue in Bauer Nike.
HOLDING:
By application of GRI 1 (Note 1(e) to Chapter 95), we find that the subject merchandise is properly classified under heading 6114, HTSUS. Specifically, it is classified in subheading 6114.30.30, HTSUS, which provides for “Other garments, knitted or crocheted: Of man-made fibers: Other.” The 2017 column one, general rate of duty is 14.9% ad valorem.
EFFECT ON OTHER RULINGS:
NY N007196, dated February 27, 2007, and NY N052472, dated March 6, 2009, are hereby REVOKED; NY M80510, dated March 21, 2006, is hereby MODIFIED with regard to the Padding Pants Football Garment.
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 and Trade Facilitation Division