OT:RR:CTF:FTM H305702 MJD/BJK
Center Director
Apparel, Footwear, and Textiles CEE
U.S. Customs and Border Protection
11099 South La Cienega Blvd.
Los Angeles, CA 90045
ATTN: Olga Ramos, Import Specialist
Re: Application for Further Review of Protest No. 2720-19-100428; Classification of boys' knit briefs with removable cups
Dear Center Director:
This is in reference to the Application for Further Review ("AFR") of Protest No. 2720-19-100428, timely filed on April 16, 2019, by Sandler, Travis & Rosenberg P.A., on behalf of importer, Shock Doctor, Inc. ("Shock Doctor" or "Protestant"), concerning U.S. Customs and Border Protection's ("CBP") tariff classification of certain types of boys' knit briefs with removable cups under the Harmonized Tariff Schedule of the United States ("HTSUS"). Our decision takes into account the written submissions with respect to this protest, samples provided, and teleconference meeting held with counsel for Protestant on March 5, 2021.
FACTS:
The merchandise at issue is described as boys' knit briefs that are composed of 63 percent polyester, 32 percent cotton, and 5 percent spandex, or 90 percent polyester and 10 percent spandex, and contain a removable protective flex cup for the groin area. There are three different styles at issue: (1) a brief with a "soft cup"; (2) a brief with a "flex cup;" and (3) a boxer brief with a "flex cup." Protestant asserts that the briefs "function to replace the need for a separate jock strap, incorporating a removable protective cup designed exclusively to protect the groin against injury by absorbing blows, collisions, or flying objects while playing sports, including baseball, football and hockey.
The briefs were imported into the United States on October 2, 2017, and were entered under subheading 9506.99.60, HTSUS, which provides for "[a]rticles 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." On October 19, 2018, CBP reclassified and liquidated the items under subheading 6114.30.3060, HTSUSA, which provides for "[o]ther garments, knitted or crocheted: Of man-made fibers: Other: Other: Men's or boys'."
ISSUE:
What is the tariff classification of the boys' knit briefs with removable cups?
LAW AND ANALYSIS:
Initially, we note that this matter 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 pursuant to 19 U.S.C. 1514(c)(3).
Further Review of Protest No. 2720-19-100428 is properly warranted pursuant to 19 C.F.R. 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port's liquidation of the subject entry contradicts Headquarters Ruling Letter ("HQ") 967622, dated November 23, 2005; HQ 967478, dated November 23, 2005; HQ 967623, dated November 23, 2005; and New York Ruling Letter ("NY") N057177, dated May 1, 2009.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation ("GRI"). 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 GRI may be applied in order.
The 2017 HTSUS provisions under consideration are as follows:
6114: Other garments, kitted 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:
* * *
Note 1(e) to Chapter 95, HTSUS, provides in part:
1. 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);
* * *
In addition, the Explanatory Notes ("EN") to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 (Aug. 23, 1989).
The EN to 95.06 provides the following, in pertinent part:
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.
* * *
Protestant asserts that the proper classification for the briefs at issue is in heading 9506, HTSUS. Heading 9506, HTSUS, provides for "[a]rticles 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." The EN to heading 95.06 states 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 heading 95.06 specifically states that category (B) includes, "[p]rotective 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." See EN 95.06(B)(13). However, Note 1(e) to Chapter 95 ("Note 1(e)") states that this chapter does not include "[f]ancy 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)."
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 hockey pants worn to protect the wearer from injury while playing hockey. Id. at 1248. The hockey pants were designed with an "exterior nylon or polyester textile 'shell' and an interior assembly of hard nylon plastic guards and soft polyurethane, polyethylene, or polyester foam padding attached to a belt. The internal guards, pads, and belt collectively [comprised of] about 80% of the total weight of the hockey pants." Id. The CAFC held that because the hockey pants were "specially designed and intended for use only while playing ice hockey," they were "prima facie classifiable under subheading 9506.99.25 as ice-hockey equipment." Id. at 1251.
The CAFC further refined its definition of sports equipment in LeMans Corp. v United States, 660 F.3d 1311 (Fed. Cir. 2011), where it found that motocross jerseys, motocross pants, and motorcycle jackets were not classifiable in heading 9506, HTSUS. The merchandise in that case was "designed, engineered, and produced exclusively for use while participating in motocross activities and other power sports riding." Id. at 1319. The Court distinguished the garments at issue in that case to the garments at issue in Bauer, by stating that in Bauer, the ice-hockey pants were like "the examples of pads and guards listed in EN 95.06(B)(13)," and that the motocross and motorcycle merchandise were not. Id. at 1319. The CAFC concluded by stating that the vast majority of the examples in the EN to 95.06 are not worn on the body, they are not apparel-like items. However, the CAFC stated that there are a few examples of articles worn on the body that are to be considered sports equipment and they are "exclusively used for protection and would complement, or be worn in addition to, apparel worn for a particular sport." Id. at 1322.
Similarly, in Riddell, Inc. v. United States, 754 F.3d 1375 (Fed. Cir. 2014), the CAFC determined that the football pants, jerseys, and girdles "designed to be worn, in conjunction with protective pads (having both hard and soft components), during the playing of football," but imported without the protective padding, were not classified in heading 9506, HTSUS. Id. at 1377. The Court in making this determination stated that the general rule is that sports equipment is not apparel. Id. at 1380. However, "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." Id. In the case of the Riddell merchandise, the Court found that the clothing lacked "the transformative elements that were key in Bauer," which would transform something ordinarily understood as clothing into sports equipment. Id.
In light of Note 1(e) and the above CAFC 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 are 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 for use as everyday wearing apparel.
In contrast, 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 9506 and, therefore, are not classified as sports equipment. Rather, such articles are among the articles for use in sports not intended to be classified under heading 9506, HTSUS. They are generally classified as sports clothing in Chapter 61 or 62, HTSUS.
CBP has issued several rulings regarding the classification of protective equipment classified in heading 9506, HTSUS, and those articles that are apparel used in sports classified in Chapter 61. In HQ H274971, dated May 22, 2017, CBP revoked and modified previous CBP rulings that classified football girdles and football pants in heading 9506, HTSUS, and reclassified the garments in heading 6114, HTSUS. CBP stated that "[w]hile 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'." Furthermore, CBP stated that the exemplars in the EN 95.06(B) 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." See also NY N296165, dated April 25, 2018 (classifying unisex adult and youth pullovers and girdles specifically designed to play football and soccer in heading 6114, HTSUS); and NY L86071, dated July 26, 2005 (classifying men's and women's sliding short, and men's football girdles in Chapter 61).
In HQ 967622, CBP revoked NY E82883, dated June 18, 1999, which had classified a sliding short used in football, hockey, and baseball that consisted of a hard protective cup and two sliding pads permanently sewn into the garments for protection in subheading 6114.30.30, HTSUS. CBP in HQ 967622 classified the merchandise in subheading 9506.99.60, HTSUS, stating that it was the "hard cup in the sliding short that impart[ed] the protective features to the short, which [brought] it within the scope of heading 9506, HTSUS," not the sliding pads permanently sewn in the shorts. Similarly in HQ 967478, CBP revoked NY K88490, dated August 19, 2004, which classified "hockey protective shorts," that are worn under hockey pants with a protective cup permanently affixed to the shorts and had "two hook and loop attachments enabling hockey pants to be attached," under subheading 6114.30.30, HTSUS. CBP reclassified the hockey jocks in subheading 9506.99.25, HTSUS, stating that "[t]he features of the models make them especially suited for hockey, the use for which they are designed and marketed, and impractical to use as everyday wearing apparel." See also NY N057177 (classifying hockey shorts with a "removable hard plastic cup that protects the groin area" under subheading 9506.99.25, HTSUS); and HQ 967623 (classifying hockey jocks with a removable hard plastic protective cup for protection against injury in subheading 9506.99.25, HTSUS). Protestant asserts that the sliding shorts in HQ 967622 and the hockey protective equipment in the above-mentioned rulings are akin to the briefs with the removable cups at issue in this case.
For undergarments with a component built-in for a protective cup, CBP generally classifies these items in subheading 6114.30.30, HTSUS. For example, in HQ H251142, dated May 29, 2015, CBP classified Protestant's compression protective sport shorts "constructed of Lycra (polyester and spandex) with various high-frequency polyurethane compression-molded foam pads permanently sewn ('welded') into the thigh and groin area, and at the hips and buttocks." The shorts also included padding and a "separate inside pocket [which] accommodates a hard athletic support cup, imported and sold separately." Similarly, in NY I82698, dated June 18, 2002, CBP classified a men's underwear unitard with a "sewn-on pouch designed for a protective cup that may be secured with a hook & loop fabric tab" in subheading 6114.30.30, HTSUS. Likewise, in NY I80080, dated April 19, 2002, CBP classified a 100% polyester mesh fabric hockey undergarment with "an elastic waistband, braided cord waist tie, pocket for a protective sport cup, and hook and loop fasteners for attaching socks," in subheading 6114.30.30, HTSUS. CBP stated that the undergarment were "specially designed for the sport of hockey and considering the fabric, design and construction, it is unlikely these shorts will be worn for any purpose other than playing hockey."
Here, we find that the boy's knit briefs with the removable protective cups are not sports equipment classified in heading 9506, HTSUS. Instead, they are apparel that incorporates a protective component in the form of a removable cup. This type of apparel is specifically excluded by Note 1(e). Protestant asserts that the briefs at issue here are similar to the sliding shorts in HQ 967622, and the hockey equipment in HQ 967478, HQ 967623, and NY N057177. We disagree. The merchandise in those rulings was akin to the examples in EN 95.06, specifically EN 95.06 (B)(13), which provides for "[p]rotective 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." That merchandise is not akin to the briefs at issue here. While the briefs in this case have a protective cup similar to that of the abovementioned rulings, the removable cup has not transformed the briefs to make them anything other than apparel.
Instead, the briefs in this case are analogous to the undergarments in HQ H251142, NY I82698, and NY I80080 that were specifically designed for sports and incorporated a compartment for a cup that protects the groin area, but nevertheless are apparel and classified in subheading 6114.30.30, HTSUS. In addition, the briefs in this case are also similar to the football girdles and football pants in HQ H274971, despite Protestant's insistence that CBP has treated briefs with removable protective cups separately and differently than girdles with hip and thigh pads. Again, we disagree with Protestant. CBP has treated football girdles and pants similar to undergarments with a protective cup because despite their exclusive use in sports and incidental protective features, the articles are not transformed to anything other than apparel. Thus, we find that the Shock Doctor briefs with removable cups do not provide protection akin to the exemplars set forth in the EN to heading 95.06 and are therefore properly classified in subheading 6114.30.30, HTSUS, which provides for "[o]ther garments, knitted or crocheted: Of man-made fibers: Other: Other: Men's or boys'."
HOLDING:
By application of GRI 1, the boy's knit briefs with removable cups are classified in subheading 6114.30.30, HTSUS, which provides for "[o]ther garments, knitted or crocheted: Of man-made fibers: Other: Other: Men's or boys'." The 2017 column one, general rate of duty is 14.9% ad valorem.
You are instructed to DENY the protest.
You are instructed to notify Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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90 K Street, NE, 10th Floor
Washington, DC 20229-1177