CLA-2 OT:RR:CTF:TCM H281032 RGR
Ms. Michelle Garza
Toll Global Forwarding Inc.
1226 Michael Dr., Suite D
Wood Dale, IL 60191
RE: Tariff classification of Elbow/Knee Pad, Forearm Sleeve, Arm Sleeve
Dear Ms. Garza:
This letter is in response to your request for a classification ruling of elbow/knee pads, a forearm sleeve, and an arm sleeve under the Harmonized Tariff Schedule of the United States (“HTSUS”). All three items are made of 88% polyester and 12% spandex, and are worn while playing basketball.
Your submission included samples of the elbow/knee pads, forearm sleeve, and arm sleeve, which we are returning to you.
FACTS:
The elbow/knee pads, forearm sleeve, and arm sleeve each consist of a shell that is 88% polyester and 12% spandex. The polyester/spandex shell covers 11 mm of triangular padding that consists of ethylene-vinyl acetate (“EVA”). The back of the packaging states that “[t]he TRI-FLEX pad system is constructed of strategically placed triangular pads to conform to the player’s body. TRI-FLEX pads provide comfort and protection from impacts during practice or competition.”
The elbow/knee pads are described in product marketing materials as a “compression knee pad with integrated TRI-FLEX pad system for a low-profile, form-fitting knee pad.” They also consist of moisture-wicking fabric to keep moisture away from the skin.
The forearm sleeve is described in product marketing materials as a “compression forearm sleeve with TRI-FLEX pad system for optimum protection and flexibility.” The forearm sleeve also consists of moisture-wicking fabric to keep moisture away from the skin.
The arm sleeve consists of a 4-inch section of TRI-FLEX padding that covers the elbows for added protection against impact. The arm sleeve also consists of moisture-wicking fabric to keep moisture away from the skin. Like the elbow/pads pads and forearm sleeve, the arm sleeve is compression fit, from the mid-bicep to the wrist.
ISSUE:
Whether the elbow/knee pads, forearm sleeve, and arm sleeve are classified under heading 9506 of the 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” or in heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.”
LAW AND ANALYSIS
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI's”). 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 in this case are as follows:
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
6307 Other made up articles, including dress patterns
* * * *
Note 1(e) to Chapter 95 states that the chapter does not cover “sports clothing . . . of textiles, of chapter 61 or 62.”
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 95.06 states in relevant part:
This heading covers:
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(B) Requisites for other sports and outdoor games . . .
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(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” (emphasis added).
The EN to 63.07 states in relevant part:
This heading covers made up articles of any textile materials which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
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It includes, in particular:
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(26) Support articles of the kind referred to in Note 1(b) to Chapter 90 for joints
(e.g., knees, ankles, elbows or writs) or muscles (e.g., thigh muscles), other
than those falling in other headings of Section XI.
The Court of Appeals for the Federal Circuit (“CAFC”) has issued several opinions considering the tariff term “sports equipment.” 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. 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. The CAFC concluded that, “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” (emphasis added). Id. at 1320. 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). 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.
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 equipment in heading 9506, HTSUS, if they are primarily worn for protection during sports and afford protection akin to the exemplars set forth in the EN to heading 95.06. 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 pact 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 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 95.06 and therefore, are classified under heading 6307, which is a residual provision that covers other made up articles of textiles.
Unlike the protective materials in Nike Bauer and subsequent cases involving heading 9506, which involved textile articles worn on the person while participating in sports and that incorporated guards, pads, or foam into the apparel, the primary function of the elbow/knee pads is to protect from impacts. According to the requester’s website, the elbow/knee pads are protective and are used while practicing or playing basketball. The elbow/knee pads are designed exclusively for protection from impacts and are not used as everyday apparel. The TRI-FLEX padding system is constructed of strategically placed pads that conform to the player’s body. While the elbow/knee pads may also provide some compression support, the predominant purpose for wearing them is to protect against impact. Further, we note that CBP has ruled that a padded sport shirt consisting of 9 mm of EVA foam protective padding was sufficiently protective in nature that it was akin to the exemplars in the ENs to heading 95.06. See New York Ruling Letter (“NY”) M86348 (Sept. 8, 2006). Even though the article in NY M86348 was referred to as a “shirt,” it was not excluded from classification in Chapter 95 under Note 1(e) because the protective nature of the good overrode its shirt-like qualities. However, there is no known garment that covers only the knees and elbows. Additionally, the elbow/knee pads’ EVA foam padding is thicker than the EVA foam padding in NY M86348, which we found to be sufficiently protective in nature for purposes of heading 9506, HTSUS. Therefore, the elbow/knee pads are not excluded from classification in heading 9506, HTSUS, by Note 1(e) of that chapter, and in fact, are classifiable there.
Turning to the arm sleeve and forearm sleeve, although they are worn by some as sports clothing, they are not named in Chapters 61 or 62 as such and thus are not excluded from chapter 95 under Note 1(e), even though they are not primarily worn for protection against impact. While the arm sleeve and forearm sleeve include 11 mm of EVA padding, this is an additional benefit that does not negate the primary purpose of wearing such sleeves, which is for compression support to protect an injury, warmth or cooling, UV protection and increased blood flow. In addition, an arm sleeve and forearm sleeve is typically worn as an accessory while playing basketball, similar to a wrist band. Such sleeves are often worn as fashion statements, even when a player does not have an injury. It has also been speculated 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.
Unlike the elbow/knee pads, where the predominant purpose is protection against impact, the primary purpose for wearing an arm sleeve or forearm sleeve is compression support to protect an injury and to retain warmth while playing basketball. In order to fall under heading 9506, HTSUS, sports equipment must be “designed exclusively for protection against injury, that is equipment having protective features with the sole or primary function of directly absorbing the impact of blows, collisions or flying objects.” Headquarters Ruling Letter (“HQ”) 963534 (Aug. 29, 2001). In addition, unlike the elbow/knee pads, the forearm sleeve and arm sleeve are not specifically set forth as one of the protective exemplars in the EN to heading 95.06. Although the arm sleeve with elbow padding may provide some protection against impact, the predominant function of the sleeve is for compression support. As the CAFC explained in Riddell, Inc., v. United States, 754 F.3d 1375, 1381 (Fed. Cir. 2014), an article does not become “sports equipment” just because it contains some protective padding. Similarly, just because the arm sleeve has elbow padding does not transform the sleeve into “sports equipment” for purposes of heading 9506, HTSUS. Accordingly, as the primary function is not to protect against impact from blows, collisions, or flying objects, the arm sleeves are not sports equipment as set forth in heading 9506, HTSUS.
Having eliminated the possibility of classification of the arm sleeve and forearm sleeve under heading 9506, HTSUS, we must now determine whether the sleeves are properly classified under heading 6307, HTSUS, which provides for other made up articles. We first note that in NY N240246, dated May 1, 2013, we recently classified a similar tapered arm sleeve with a permanently sewn-in elbow pad under subheading 6307.90.9889, HTSUS, even though—like the subject sleeves—it had some protective padding. Heading 6307, HTSUS, is a basket provision appropriate for textile articles which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. See EN 63.07. The subject sleeves have been assembled by sewing, gumming, or otherwise, as described in Note 7 to Section XI, HTSUS. Therefore, they constitute made up articles for purposes of heading 6307, HTSUS. As the sleeves are not more specifically provided for elsewhere in the tariff, and they are described by the heading text, classification in heading 6307, HTSUS, is appropriate.
In addition, we recently examined a compression sleeve in NY N248199, dated December 12, 2013, that is identical in description to the subject sleeves in this ruling request. In that ruling, CBP classified a compression sleeve constructed of 80% nylon and 20% spandex knit textile fabric under heading 6307, HTSUS. Where the subject sleeves appear to be identical to the sleeve in NY N248199, we find that classification in heading 6307, HTSUS, is appropriate. See also HQ 965110, dated May 21, 2002.
Moreover, the EN to heading 63.07 specifically provides for articles such as the arm sleeve and forearm sleeve. In particular, the EN to heading 63.07 states that it includes “support articles of the kind referred to in Note 1(b) to Chapter 90 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.” Such articles referred to in Note 1(b) to Chapter 90 include “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).” As arm sleeves and forearm sleeves provide compression support to muscles, they fall under the exemplars set forth in the EN to heading 63.07.
HOLDING:
By application of GRI 1, the subject elbow/knee pads are classifiable under heading 9506, HTSUS. Specifically, they are classifiable under subheading 9506.99.6080, 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: Other: Other: Other: Other.” The column one, general rate of duty is 4%.
By application of GRI 1, the subject forearm sleeve and arm sleeve are classifiable under heading 6307, HTSUS. Specifically, they are classifiable under subheading 6307.90.9889, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other.” The column one, general rate of duty is 7%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this decision should be filed with the port of entry at the time of entry.
Sincerely,
Ieva K. O’Rourke
Tariff, Classification & Marking Branch