CLA-2 CO:R:C:T 951640 jb
William J. LeClair
Trans-Border Customs Services, Inc.
One Trans-Border Drive
P.O. Box 800
Champlain, NY 12919
RE: Neck protector and hockey official's pants; subheading
9506.99.2580, HTSUSA and 6114.30.3060, HTSUSA; pants qualify
for inclusion under Chapter 99, HTSUSA
Dear Mr. LeClair:
This is in response to your letter dated March 17, 1992, on
behalf of your client, Sport Maska, Inc., requesting
classification of two items used in the game of hockey; a
player's neck protector and pants worn by officials. Samples
were provided to this office and will be returned under separate
cover.
FACTS:
The submitted merchandise consists of two articles used in
the game of hockey. One sample is identified as a neck collar,
Style No. HT820, stated to be worn by hockey players. The collar
has a polyurethane foam center covered by nylon pile fabric. The
sample elliptical-shaped collar is approximately 18 inches
overall in length and two inches in height. It fits around the
neck and is secured in the front by Velcro tabs. A cotton web
tab on the front allows the collar to be attached to the player's
uniform shirt. The neck collar is available in various lengths.
The second sample is a pair of black knit pants, identified
as Style No. PP9L, constructed of 100 percent polyester fabric.
You assert that the pants are exclusively designed and made for
use by hockey officials. Extra fullness at the legs and hips to
accommodate the protective equipment to be worn underneath is
characteristic of the pants. The pants feature a web belt with
plastic locking buckle and web belt loops, metal buttons for
suspenders, four extra large pockets to hold hockey pucks (one
zippered) and a zippered fly front. Both the neck collar and
hockey pants are made in Canada.
ISSUE:
1. Whether the neck collar is classifiable under Chapter 95,
HTSUSA, which provides for toys, games and sports
equipment; parts and accessories thereof ?
2. Whether the hockey pants are classifiable under heading
6103, HTSUSA, as pants, or under heading 6114, HTSUSA, as
other garments?
3. Whether the ice hockey pants qualify for inclusion
under subheading 9902.62.01, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI). GRI 1 requires that
classification be determined according to the terms of the
headings and any relative section or chapter notes, taken in
order. Where goods cannot be classified solely on the basis of
GRI 1, the remaining GRI will be applied, in the order of their
appearance.
Neck Collar
An examination of heading 9506, HTSUSA, reveals that the
items specifically provided for include skis, skates, balls,
rackets, golf clubs or other exercise equipment. These items are
apparatus for use while engaging or participating in the sport; a
physical necessity for the sport.
The submitted sample is not a sports article or equipment,
necessary in the conduct or pursuit of a sport, in this case, ice
hockey. While it may be worn as a neck support for increased
comfort or to compensate for an existing weakness in the physical
condition of the player, it is not equipment necessary in the
play of the sport. The relationship of the apparatus is to the
player, not to the actual playing of the game or sport.
The Explanatory Notes (EN) to the HTSUSA, while not legally
binding, constitute the official interpretation of the tariff at
the international level. It has been the practice of the Customs
Service to follow, whenever possible, those terms when
interpreting the HTSUSA.
Though the EN to heading 9506, HTSUSA, excludes sports
clothing of textile materials, of Chapter 61 and 62, the notes
also indicate that the heading does cover:
(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.
A limited survey of local sport equipment wholesalers and
retailers has led us to ascertain that when worn, this neck
collar is used primarily for its specially designed protective
qualities, especially against skate blade and high stick strikes.
As such, we believe that the subject neck protector is specially
designed protective equipment for use in the sport of ice hockey
and classified under subheading 9506.99.2580, HTSUSA, which
provides for ice-hockey and field-hockey articles and equipment,
except balls and skates and parts and accessories thereof, other,
including parts and accessories.
Hockey Pants
Comparisons were done on the submitted merchandise with
specifications for men's pants size medium. The results revealed
the following approximate oversizing: the waist- four inches; the
front rise (above the belt)- two and one quarter inches; the seat
width- two inches, and the thigh width- one half inch. We
believe the extra fullness in these areas is commensurate with
the fullness required if one intended to wear normal protective
padding or a hockey girdle under the pants.
As was discussed previously, heading 9506, HTSUSA, embraces
only certain forms of protective gear, whereas sports clothing is
specifically excluded. Heading 6103 is also not applicable as it
does not specifically provide for pants used in sports, but
trousers in general. Classification thus devolves to heading
6114, HTSUSA, a "basket" provision which encompasses other
garments, knitted or crocheted. The EN to that heading state:
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).
As was stated in HQ 086973, dated April 30, 1990, regarding
similar merchandise,
...while Customs is of the opinion that hockey pants
are 'special articles of apparel used for certain
sports'..., Customs also considers that the term
'certain' limits the scope of the heading to those
articles of sporting apparel which, protective or
otherwise, are as a general matter, worn only while
engaging in the activity for which they were designed.
The particular function of these pants is manifested in the
way in which they are specially sized to fit over protective
padding worn during the course of a hockey game. The sizing is
proportional to the protective equipment to be worn underneath
and as such the pants would not be worn except while engaged in
this activity.
No distinction is made in the EN which would limit the
subheading to garments worn only by active participants in a
sport, i.e., a player as opposed to a referee or other official.
Based on the construction and stated purpose of this garment, the
ice-hockey pants would be classified under subheading
6114.30.3060, HTSUSA, which provides for other garments, knitted
or crocheted, of man-made fibers: other: other: men's or boys'.
Qualification Under Chapter 99, HTSUSA
The purpose of Chapter 99, HTSUSA, is to afford temporary
reduction in the rates of duty applicable. Subchapter II, U.S.
Note 12 (a), to Chapter 99, HTSUSA, states:
12. (a) For the purposes of subheading 9902.62.01--
(1) The terms "sports clothing" refers to:
(A) ice hockey pants, provided for in
subheadings 6113.00, 6114.30, 6210.40,
6210.50, 6211.33 or 6211.43
In classifying the garment in the HTSUSA heading, we
determined that these were pants worn by an official during
hockey games and were considered special clothing for "certain
sports". Subheading 9902.62.01 provides for sports clothing,
however provided for in Chapters 61 and 62. In the absence of
clear legislative intent limiting this heading to garments solely
worn by the players, subheading 9902.62.01, HTSUSA, would apply
to this garment.
Subchapter II, U.S. Note 12 continues to state:
(b) The column 1-general rate of duty for articles entered
under heading 9902.62.01 is a rate equal to the column 1
rate of duty that would have applied to such goods under
the Tariff Schedules of the United States Annotated
(TSUSA) on December 31, 1988.
On December 31, 1988, under the Tariff Schedules of the
United States (TSUS), pants similar to these would have been
classified in item 381.88, TSUS, the provision for other men's or
boys' wearing apparel, not ornamented: of man-made fibers:
trousers and slacks, dutiable at the rate of 30 percent ad
valorem.
HOLDING:
The neck protector is classified under subheading
9506.99.2580, HTSUSA, which provides for ice-hockey and field
hockey articles and equipment, except balls and skates, and parts
and accessories thereof, other, including parts and accessories.
This provision carries a free rate of duty.
The ice hockey pants are classifiable under subheading
6114.30.3060, HTSUSA, which provides for other garments, knitted
or crocheted, of man-made fibers: other: other men's or boys'.
The applicable rate of duty for this merchandise has been
temporarily increased by subheading 9902.62.01 to 30 percent
ad valorem, and the textile category is 659.
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.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client 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