HQ 0086973 - Ice Hockey Pants; Reconsideration of HRL 083858 - United States International Trade Commision Rulings

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HQ 086973

April 30, 1990

CLA-2 CO:R:C:G 086973 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0060

Mr. J.B. Broadbent
Manager, Customs & Traffic
Irwin Toy Limited
43 Hanna Avenue
Toronto, Ontario M6K 1X6
Canada

RE: Ice Hockey Pants; Reconsideration of HRL 083858

Dear Mr. Broadbent:

This is in reply to your letter of April 16, 1990, in which you requested a ruling concerning the classification of hockey pants under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted with your request.

FACTS:

The ice hockey pants at issue are manufactured in Taiwan and have an outer shell composed of nylon. The pants have padding in certain areas which are sewn to the inside of the article. Separate pieces of padding which can be inserted into the pants are also included. The pants are knee length and are fastened by means of laces up the front.

ISSUE:

Whether hockey pants are classifiable as sports equipment, as shorts, or as other garments of heading 6211, HTSUSA.

LAW AND ANALYSIS:

Sports equipment is provided for generally in heading 9506, HTSUSA, while ice hockey equipment in particular is covered by subheading 9506.99.25. However, Note 1(e), Chapter 95, HTSUSA, excludes sports clothing of Chapters 61 and 62, HTSUSA, from the coverage of Chapter 95. Nevertheless, you state that in view of their protective function, hockey pants should be classified as sports equipment.

Although protective equipment is covered by heading 9506, it is Customs' view that the heading embraces only certain forms of protective gear, and that sports clothing, regardless of the protection they afford the wearer, is still excluded. The Explanatory Notes, which constitute the official interpretation of the Harmonized System at the international level, provide at EN 95.06(B)(13), that protective gear of heading 9506 includes such articles as fencing masks and breast plates, elbow and knee pads, cricket pads and shin guards.

In Headquarters Ruling Letter (HRL) 083858 dated April 25, 1989, hockey pants similar to those now at issue were classified in heading 6203, HTSUSA, under the provision for men's or boys' suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear). According to EN 61.03, which applies mutatis mutandis to articles of heading 6203, the term "'shorts' means 'trousers' which do not cover the knee."

In contrast, heading 6211, HTSUSA, covers track suits, ski- suits, swimwear and other garments. EN 61.14, which applies mutatis mutandis to articles of heading 6211, provides that the heading includes, inter alia, "special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys' silks, ballet skirts, leotards)," which are not provided for more specifically in preceding headings of Chapter 62.

Although heading 6203 provides for shorts, i.e., trousers which do not cover the knee, it is Customs' view that this provision is confined to bermuda, walk and other dress-type shorts and does not include hockey pants and other shorts used for sports. Whereas the former are a form of casual dress, the latter are designed specifically for ice hockey and, in addition, serve a protective function. Like fencing clothing and ballet skirts, hockey pants have a particular function and are not commonly worn except in furtherance of this end. Thus hockey pants are not ejusdem generis with trousers, overalls, breeches or bermuda shorts but are a separate and distinct class of merchandise. Moreover, Customs views the exclusion of swimwear from heading 6203 as instructive given that the heading for swimwear (6211) extends also to special articles of apparel used for certain sports.

However, while Customs is of the opinion that hockey pants are "special articles of apparel used for certain sports" within the meaning of heading 6211, 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. Thus while football pants or baseball knickers might be classifiable in heading 6211, such articles as tennis or rugby shorts, which are often worn off the court or playing field, would most likely not be so classifiable.

You have stated that the outer shell of the ice hockey pants in question is coated. Textile fabrics impregnated coated, covered or laminated with plastics are provided for in heading 5903, HTSUSA. Pursuant to Note 2(a)(1), Chapter 59, HTSUSA, a plastics coating must be visible to the naked eye in order to for a fabric so coated to be classified in heading 5911. Heading 6210, HTSUSA, covers garments made up of fabrics of, inter alia, heading 5903. Consequently, if a plastics coating applied to the hockey pants is visible to the naked eye, the shorts would be classifiable in heading 6210.

Heading 5906, HTSUSA, covers certain rubberized textile fabrics. Note 4(a), Chapter 59, HTSUSA, provides that fabrics of this heading must not weigh more than 1,500 g/m, or if weighing more, must contain more than 50 percent by weight of textile material. Heading 6210 also covers garments made up fabrics of heading 5906. If a rubberized coating applied to the ice hockey pants were to meet the requirements of Note 4, Chapter 59, the shorts would be classifiable in heading 6210.

HOLDING:

Provided that the hockey pants in question are not coated, they are classifiable in subheading 6211.33.0060, HTSUSA, under the provision for other garments, men's or boys', of man-made fibers, other and are dutiable at 17 percent ad valorem. The textile category is 659.

If coated with plastics such that they would be considered made up of a fabric of heading 5903, or coated with rubber such that they would be considered made up of a rubberized fabric of heading 5906, the hockey pants would be classifable either in subheading 6210.40.1010, HTSUSA, under the provision for other men's or boys' garments, of man-made fibers, having an outer surface impregnated, covered, coated or laminated with rubber or plastics material which completely obscures the underlying fabric, or in subheading 6210.40.1050, HTSUSA, under the provision for other men's or boys' garments, of man-made fibers, other, other. In both instances the ice hockey pants would be dutiable at 7.6 percent ad valorem. The textile category is 659.

Goods which originate in the territory of Canada and which are classifiable in these subheadings are eligible for tariff treatment as set forth in the "Special" subcolumn of the HTSUSA, in accordance with section 201 of the United States-Canada Free- Trade Agreement Implementation Act of 1988, and would be subject to duty at the following rates:

1) if classifiable in subheading 6210.40.1010, dutiable at 6 percent ad valorem;

2) if classifiable in subheading 6210.40.1050, dutiable at 6 percent ad valorem;

3) if classifiable in subheading 6211.33.0060, dutiable at 13.6 percent ad valorem.

Pursuant to section 177.9, Customs Regulations (19 CFR 177.9), HRL 083858 of April 25, 1989, is modified in conformity with the foregoing.

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 renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

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