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HQ 088967


April 19, 1991

CLA-2 CO:R:C:T 088967 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3060

Mr. David Kennedy
Authorized Agent
W.Y. Moberly, Inc.
Box 164
Sweetgrass, Montana 59484

RE: Hockey hose, designed to be worn under a hockey player's outer shorts or pants, are neither pants nor underwear, nor hockey pants, but other garments.

Dear Mr. Kennedy:

This is in reply to your letter of February 8, 1991, concerning the tariff classification of "Hockey Hose", pro- duced in Canada, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client Hockey Hose Canada Inc. The marking issues you ad- dressed will be responded to in a separate correspondence.

FACTS:

The merchandise at issue consists of a one piece garment covering the lower portion of the body from waist to ankle. Imported in men's sizes small, medium, large, and extra large, it is designed to be worn under a hockey player's outer shorts or pants. By incorporating hockey socks and an athletic supporter in the design, you claim that this garment elimi- nates the need for a separate athletic supporter, garter and suspenders. The upper portion of the garment is constructed of 100% finely knit polyester, dropped stitch mesh fabric, a 3" wide elastic waistband, and a pouch designed to hold a protective cup. The remainder of the garment, covering each leg to the ankle, is constructed from 100% polyester 1x1 rib knit fabric, with decorative team-denoting stripes, containing 11 stitches per two centimeters. A rib knit cuff with an elastic band finishes the ankle portion.

ISSUE:

Whether the instant merchandise is considered hockey pants under the HTSUSA?

LAW AND ANALYSIS:

You have suggested that subheading 9905.61.05, HTSUSA, is applicable. This subheading, a temporary modification of the HTSUSA established pursuant to the United States-Canada Free

Trade Agreement, provides a free rate of duty for pants and shells for pants, for use in ice hockey, when classified in subheadings 6114.30.30, 6210.40.10 or 6210.40.20. Therefore, in order for the instant merchandise to take advantage of the duty reduction discussed above, it not only must be classifi- able in subheading 6114.30.30, HTSUSA, (the only "knit" provi- sion), but must be considered pants (or shells for pants).

The Customs Service periodically issues the Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories. The Guidelines, most recently published at 53 Fed. Reg. 52563 (Dec. 28, 1988), CIE 13/88 (Nov. 23, 1988), note that since certain types of garments are closely related in use, the Guidelines "are to be used as an aid in determining the commercial designation and, hence, the classi- fication of an article." Used as such, they "represent the present position of the Customs Service."

The Guidelines, at 21, describe trousers (pants), breech- es and shorts as "outerwear garments with leg separations extending to the vicinity of the upper thigh or below." While the hockey hose do have leg separations, the wide mesh upper portion wholly disqualifies them as outerwear. Subheading 9905.61.05, HTSUSA, is therefore inapplicable.

Since the hockey hose are not outerwear, heading 6107, HTSUSA, provides for men's or boys' underpants and similar articles. The Guidelines, at 25, provide:

Category designation: Underwear

The term "underwear" refers to gar- ments which are ordinarily worn under oth- er garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out- of-doors. Whether or not a garment is worn next to the body of the wearer is not a determinant; * * *

Although the upper mesh portion of the hockey hose, hidden under the wearer's hockey pants or shorts, is not exposed to public view, the lower portion is clearly intended to be noticed. It is our opinion, therefore, that such an intention causes the hockey hose not to be considered underwear.

Heading 6114, HTSUSA, provides for other knitted or crocheted garments. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading states:

This heading covers knitted or cro- cheted garments which are not included more specifically in the preceding head- ings of this Chapter.

The heading includes, inter alia:

(5) Special articles of apparel used for certain sports or for dancing or gym- nastics (e.g., fencing clothing, joc- keys' silks, ballet skirts, leo- tards).

This description, in our opinion, includes the hockey hose at issue.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6114.30.3060, HTSUSA, textile category 659, as other garments, knitted or crocheted, of man- made fibers, other, other, men's or boys'. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchan- dise constitutes "goods originating in the territory of Cana- da," the applicable rate of duty is 11.2 percent ad valorem; otherwise, the general rate of duty is 16.1 percent ad valo- rem.The designated textile and apparel category may be subdi- vided into parts. If so, visa and quota requirements applica- ble to the subject merchandise may be affected. Since part categories are the result of international bilateral agree- ments which are subject to frequent negotiations 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 issu- ance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office. Due to the changeable nature of the statistical annota- tion (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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