OT:RR:CTF:TCM H281510 CkG
TARIFF NO: 3926.90.99, 6507.00.00, 9506.90.20
Port Director
U.S. Customs and Border Protection
Port of Chicago
5600 Pearl Street
Rosemont, IL 60018
ATTN: Osbaldo Cruz, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 3901-09-101273; classification of sports protective equipment
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 3901-09-101273, dated September 2, 2009, on behalf of Riddell, Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of assorted protective articles for use in sports in subheading 9506.99.60, HTSUS.
The subject merchandise was entered on April 23, 2008, in subheading 9506.99.20, HTSUS, as “Football, soccer and polo articles and equipment, except balls, and parts and accessories thereof.” The subject entry was liquidated on March 6, 2009, in subheading 9506.99.60, HTSUS, as “other” articles and equipment for sports.
FACTS:
The merchandise at issue consists of various protective articles intended for use in the sport of football. Samples of the following items were provided to our office:
New Youth Rib Vest: A vest-like article with a heavily padded area encircling the torso around the ribs. The vest straps are made of textile as well as covering the padded areas.
Varsity Thigh Pads: Foam pads covered with hard, high-density polyethylene (HDPE) plastic
Back Plate Stock Power and Flat and Angled Back Plates: Rectangular plates of HDPE plastic, used to create a finished foam padded back plate.
Neck Roll: A U-shaped foam pad worn around the back of the neck and over the shoulders
Chin Strap -- a hard cup chinstrap made of HDPE plastic, designed to snap onto a football helmet.
Small Hitter STAC Shoulder Pad, SC-18 Shoulder Pad Sub-Assembly: Soft foam pads covered with a hard HDPE plastic shell
Varsity Neck Roll Restrictor: Fabric covered foam pad, designed to attach to the shoulder pad neck roll for additional neck protection.
Rib Protectors: Large fabric-covered foam pads worn around the chest and back
Power ProPad Stock Power Screw On: A fabric-covered foam pad with backplate included which wraps fully around the torso for rib, chest and back protection
Underpad Stock Power: Constructed of foam padding with a textile outer shell. Covers the shoulders, torso and back, worn over the shoulders for protection during “walk-through” practice sessions.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 3901-09-101273 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise; specifically, New York Ruling Letter (NY) B87173, dated July 15, 1997; NY C82761, dated December 23, 1997; and NY H84404, dated August 16, 2001.
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The 2009 HTSUS provisions at issue are as follows:
3926: Other articles of plastics and articles of other materials of headings 3901 to 3914:
6307: Other made up articles, including dress patterns:
6507: Head-bands, linings, covers, hat foundations, hat frames, peaks and chinstraps, for headgear
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:
Other:
9506.99: Other:
9506.99.20: Football, soccer and polo articles and equipment, except
balls, and parts and accessories thereof…
9506.99.60 Other…
Note 1 to Chapter 95 provides, in pertinent part:
This chapter does not cover:
(e) Fancy dress of textiles, of chapter 61 or 62; sports clothing and special
articles of apparel 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 areas (for example, fencing clothing or soccer goalkeeper jerseys);
(g) Sports footwear (other than skating boots with ice or roller skates attached)
of chapter 64, or sports headgear of chapter 65;
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 nor 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, 35128 (August 23, 1989).
The EN to heading 9506 provides, in pertinent part, as follows :
This heading covers :
(B) Requisites for other sports and outdoor games (other than toys presented in
sets, or separately, of heading 95.03), e.g. :
(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.
The 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).
* * * *
Heading 9506, HTSUS 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." The EN 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 EN 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." See EN 95.06(B)(13).
Pursuant to Note 1(e) to Chapter 95, textile articles of Chapters 61 and 61 of chapter 61 or 62 incorporating only incidentally protective components such as pads or padding in the elbow, knee or groin areas (for example, fencing clothing or soccer goalkeeper jerseys) are excluded from Chapter 95. The Court of Appeals for the Federal Circuit (“CAFC”) has issued several opinions considering the tariff term “sports equipment” in the context of Note 1(e) and protective apparel designed for use in sports. In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir. 2004), the CAFC addressed the classification of padded sports pants that were “specially designed and intended for use only while playing ice hockey,” and “protected the wearer from injury by absorbing and deflecting blows, collisions, and flying objects in areas where serious injury may occur.” The pants 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. The Court concluded that the pants provided “what is necessary, useful or appropriate” for the sport of ice hockey and were therefore appropriately classified in subheading 9506.99.25, HTSUS, as ice-hockey equipment. Id. at 1251.
In contrast, the CAFC determined in LeMans Corp. v United States, 660 F.3d 1311 (Fed. Cir. 2011) that motorcross jerseys, pants and jackets were not classifiable in heading 9506, HTSUS. While the merchandise at issue in LeMans was designed exclusively for use in the sport of motorcrossing and contained padding that accounted for up to 50% of the total weight of the jerseys, pants, or jackets, ultimately the motocross merchandise was not considered akin to the exemplars contained in the ENs, which “are not apparel-like and are almost exclusively protective in nature”. Id. at 1320. Similarly, in Riddell, Inc. v. United States, 754 F.3d 1375, 1380 (Fed. Cir. 2014), the CAFC determined that the merchandise in Riddell (football pants and jerseys, sans protective padding) lacked “the transformative elements that were key in Bauer”, which would transform something ordinarily understood as clothing into sports equipment.
In light of Note 1(e) and the above decisions, 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.
In contrast, articles worn on the person while participating in sports which offer
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 precluded from classification in heading 9506, HTSUS, by note 1(e).
The Varsity Thigh Pads, Back Plate Stock Power, Neck Roll, Small Hitter Shoulder Pad, Varsity Neck Roll Restrictor, Combo Rib Protector, Flat and Angled Back Plates, Power ProPad Stock Power Screw On, SC-18 Shoulder Pad Sub-Assembly, and Rib Protectors are solely protective in nature and are not articles of apparel. They are exclusively designed for protection of the chest, ribs, back and knees, as they are constructed with thick foam and/or hard plastic guards, with the sole function of directly absorbing impacts, blows or collisions while playing the sport of football. Most of the articles have a means of being attached to certain Riddell shoulder pads (via snaps, zippers, Velcro, etc.) to extend the area of protection that is covered by the pads and/or guards. The protection provided by the various articles is akin to the exemplars set forth above in Explanatory Note (EN) 95.06(B)(13). The Varsity Thigh Pads, Back Plate Stock Power, Neck Roll, Small Hitter Shoulder Pad, Varsity Neck Roll Restrictor, Combo Rib Protector, Flat and Angled Back Plates, Power ProPad Stock Power Screw On, SC-18 Shoulder Pad Sub-Assembly, and Rib Protectors are therefore classified in heading 9506, HTSUS. With respect to the subheading classification, the above Riddell products are designed and used in the sport of football, for the protection of areas particularly vulnerable to impacts and blows in football, such as the shoulders, neck and ribs. Riddell, furthermore, is a company specializing in goods for use in football. We are therefore persuaded that the instant articles are football articles and equipment, classified in subheading 9506.99.20, HTSUS, which provides for, inter alia, football articles and equipment and parts and accessories thereof.
The New Youth Rib Vest is similar to the articles considered under Bauer; it is worn on the body as an article of apparel would be, but with heavy padding around the torso to protect the ribs. Similar to the hockey pants considered in Bauer, the New Youth Rib Vest contains an amount of padding that would make it heavy, bulky and impractical to wear on a day-to-day basis as an ordinary article of apparel. The article is only practically suitable for the activity of playing football or a similar contact sport. Therefore the New Youth Rib Vest is classified in subheading 9506.99.20, HTSUS.
The Chin Strap is designed to snap onto a football helmet, to help keep it in place. It is therefore a fitting for headgear, of heading 6507, HTSUS, which provides for fittings for headgear, including chinstraps ready for incorporation in headgear. Note 1(g) to Chapter 95 excludes, inter alia, “sports headgear of chapter 65” from classification in Chapter 95. As the chin strap is headgear designed for use in sports and is classifiable in Chapter 65, it is excluded from classification in Chapter 95 by Note 1(g) thereto. See e.g., NY H84041, dated August 10, 2001.
The Underpad Stock Power resembles football shoulder pads. However, unlike
traditional shoulder pads which are constructed of hard plastic guards to protect against injury from blows worn during games, the Underpad Stock Power is constructed with soft foam padding, which is significantly less substantial than the padding incorporated into the hockey pants at issue in Bauer. Furthermore the item is designed to be worn only during “walk-through” practice sessions in which there will be limited physical contact. The Underpad Stock Power is therefore not used directly in the sport of football, and the protection it provides is quite insubstantial when compared to the hockey pants, fencing masks, breast plates, elbow and knee pads, cricket pads, and shin-guards referenced in EN 95.06. The Underpad Stock Power is more comparable to the textile articles at issue in LeMans and Riddel, and is therefore not classified in heading 9506.
The Underpad Stock Power is a composite good composed of plastic foam and a textile outer shell. It is therefore prima facie classifiable in heading 3926, as an other article of plastic, and heading 6307, as an other made up article of textile. As the article at issue is prima facie classifiable by two or more headings, we must classify it according to GRI 3. GRI 3 states, in pertinent part, as follows:
When by application of rule 2(b) or for any reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading, which provides the most specific description, shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or made up of different components and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) shall be classified as it they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The EN to GRI 3(b) clarifies, in pertinent part:
(VIII) 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.
While we don’t have specific information on the relative cost or weight of the components of the Underpad Stock Power, an examination of the sample indicates that the plastic foam predominates in bulk and weight. Furthermore, the foam padding plays the most central role in the use of the good—i.e., as protection against minor impacts or falls during the course of the “walk-through” football practice. The foam pad thus imparts the essential character to the good, which is classified in heading 3926, HTSUS.
HOLDING:
By application of GRIs 1, 3 and 6, the Varsity Thigh Pads, Back Plate Stock Power, Neck Roll, Small Hitter Shoulder Pad, Varsity Neck Roll Restrictor, Combo Rib Protector, Flat and Angled Back Plates, Power ProPad Stock Power Screw On, SC-18 Shoulder Pad Sub-Assembly, Rib Protectors and the New Youth Rib Vest are classified in subheading 9506.99.20, 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:: Football, soccer and polo articles and equipment, except balls, and parts and accessories thereof.” The 2009 column one, general rate of duty is Free.
The Chin Strap is classified in subheading 6507.00.00, HTSUS, which provides for “Headbands, linings, covers, hat foundations, hat frames, peaks (visors) and chin straps, for headgear.” The 2009 column one, general rate of duty is Free.
The Underpad Stock Power is classified in heading 3926, HTSUS, specifically subheading 3926.90.99, HTSUS, which provides for: “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2009 column one, general rate of duty is 5.3 percent ad valorem.
You are instructed to ALLOW the protest in part with respect to the Varsity Thigh
Pads, Back Plate Stock Power, Neck Roll, Small Hitter Shoulder Pad, Varsity Neck Roll Restrictor, Combo Rib Protector, Flat and Angled Back Plates, Power ProPad Stock Power Screw On, SC-18 Shoulder Pad Sub-Assembly, Rib Protectors, and the New Youth Rib Vest.
Since the rate of duty applicable to the Chin Strap is equal to the claimed classification, you are instructed to ALLOW the protest with respect to the Chin Strap.
You are instructed to DENY the protest with respect to the Underpad Stock Power.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing
Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public online at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division