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HQ 088288


April 4, 1991

CLA-2 CO:R:C:T 088288 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

Ms. Donna Wyzykowski
The Buffalo Customhouse Brokerage Co., Inc. Peace Bridge Plaza Warehouse
Suite 211
Buffalo, NY 14213

RE: Equestrian vest/body protector; sports clothing is separate and distinct class of merchandise from sports equipment. Note 1(e), Chapter 95 does not exclude protective sports equipment of textiles. EN 95.06; EN 61.14. HRL 083936 revoked.

Dear Ms. Wyzykowski:

This is in reply to your letter dated November 27, 1990, on behalf of Tipperary Sports Products, Inc., in which you requested reconsideration of Headquarters Ruling Letter 083936 of May 22, 1989.

FACTS:

The merchandise in question is an equestrian "vest" or body protector composed of 80 percent polyester and 20 percent cotton. The article is sleeveless with a high, rounded neckline and a center opening secured by a hook and loop type closure. The vest is cut to the waist in front but extends approximately six inches below the waist in back. Contained within the vest are shock absorbing foam strips roughly one half inch thick. The sides of the body protector are secured by means of hook and loop type fasteners.

The purpose of the article is to cushion the impact of falls and thereby reduce the risk of injury to equestrians. The "vest" is worn underneath a riding jacket. You state that some riding clubs have made the wearing of body protectors mandatory and that such protectors are eventually expected to become mandatory attire in competition.

In Headquarters Ruling Letter (HRL) 083936 dated May 22, 1989, the identical merchandise was classified in heading 6211, HTSUSA. However, you contend that the protector is properly classifiable as sports equipment in heading 9506, HTSUSA, given that its sole function is protective. In this regard you state that the protector is not clothing since it has no aesthetic or decorative function. Moreover, you state that the "vest" could be worn without a textile covering since the foam strips are held together by connective bands.

ISSUE:

Whether the article in question is sports clothing such that Note 1(e), Chapter 95, HTSUSA, excludes it from classification in heading 9506, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that articles are first classifiable according to the terms of the headings and any relative section or chapter notes and then, provided the headings or notes do not otherwise require, according to the remaining GRIs taken in order.

Heading 9506, HTSUSA, provides for, inter alia, articles and equipment for gymnastics, athletics and other sports. Note 1(e), Chapter 95, HTSUSA, however, excludes sports clothing of textiles of Chapter 61 or 62 from the scope of Chapter 95. In contrast, the Explanatory Notes (EN), which although not legally binding, constitute the official interpretation of the Harmonized System at the international level, provide at EN 95.06(B)(13) that Chapter 95 includes protective equipment for sports or games such as fencing masks and breast plates, elbow and knee pads, cricket pads and shin guards.

The "vest" at issue is made in part from textiles and is worn on the upper body to provide protection from falls. The question therefore arises as to whether the article is clothing and is excluded from heading 9506 or whether it is protective equipment embraced by the heading.

In HRL 083936 the instant vest was classified as an other garment of heading 6211, HTSUSA. Citing Note 1(e), Chapter 95, we stated that "[i]t is our opinion that all sports clothing, regardless of any protective features indicating it is designed specifically for a particular sport, is excluded from Chapter 95 with no exceptions." Furthermore, we note that EN 61.14, which applies, mutatis mutandis, to heading 6211, states that heading 6211 includes aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc.

In contrast, in HRL 083854 dated April 26, 1989, a weighted vest designed to be worn during exercise was classified in heading 9506. There we stated in pertinent part:

The weighted vest is analogous to ankle and wrist weights which are classifiable in chapter 95. There is little difference between strapping weights to the ankles and wrists and having weights worn on the upper body. The instant vest enables the user to place the weights on the body and hold them in place while exercising. Therefore, the weighted vest at issue is classified in chapter 95 as sports equipment.

The equestrian vest is worn by riders to reduce the impact from falls. However, in contrast with the articles enumerated in EN 62.11, which are garments worn over other forms of clothing to protect them from dirt, etc., the instant "vest" is designed to be worn under a riding jacket, for example, to protect the person during equestrian competition. In this regard the equestrian vest is analogous to articles classifiable in Chapter 95 such as elbow pads, knee pads, cricket pads and shin-guards. In Customs' opinion there is little difference between elbow and knee pads, and padding designed to protect the shoulders, back and ribs. In addition, while elbow pads are generally optional forms of equipment, we understand that the body protector is required by certain equestrian clubs and may soon be required for international competition. Finally, as the "vest" is bulky and uncomfortable, it would not be worn for any other purpose, e.g., for warmth, or as a fashion item.

Thus while Customs remains of the opinion, as stated in HRL 083936 that protective clothing is a separate and distinct class of merchandise from protective equipment, we believe the instant article falls within the realm of equipment rather than of clothing. It is not worn for comfort or display, nor is it worn over other garments to prevent them from being soiled or damaged. Consequently, it is classifiable as sports equipment of heading 9506 rather than as other apparel of heading 6211.

HOLDING:

The body protector vest in question is classifiable in subheading 9506.99.6080, HTSUSA, under the provision for articles and equipment for gymnastics, athletics, other sports ... or outdoor games ....; other; other; other; other. The vest is dutiable at the rate of 4.64 percent ad valorem. Articles classifiable in this subheading are not currently subject to quota/visa restrictions.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking HRL 083936 to reflect the above classification effective with the date of this letter. However, if, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within thirty days of the date of this letter.

This notice to you should be considered a revocation of HRL 083936 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 083936 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 083936 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

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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