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HQ 967815




September 21, 2005

CLA-2 RR:CTF:TCM 967815 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.33.0061

Ms. Sasha Hannon
Dye Precision, Inc.
10637 Scripps Summit Ct.
San Diego, CA 92131

RE: Classification of paintball pants

Dear Ms. Hannon:

This is in reply to your letter dated June 2, 2005, on behalf of Dye Precision, Inc. (“Dye Precision”), requesting classification of two styles of paintball pants under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your letter has been forwarded to this office for a reply.

FACTS:

The paintball pants at issue are identified as the C5 Pant and the Proto Pant. The C5 Pant is constructed primarily of a shell of woven 70% polyester, 30% nylon fabric with a water resistant coating. There is some knit mesh fabric in the groin and inner thigh areas. The pant is lined with a knit 100% polyester fabric mesh liner that wicks sweat. The garment features a rubber back grip that keeps the waist harness in place, an aramid Kevlar fiber joint above the knee that allows the pant to stretch for easier movement, vents, front zipper closure with protective flap, adjustable attached web belt, side slash pockets and leg patch pockets. There is textile padding in the groin and knee areas.

The Proto Pant is constructed primarily of a shell of woven 25% polyester, 75% nylon fabric with a water resistant coating. There is some knit mesh fabric in the groin, crotch and inner thigh areas. The pant is lined with a knit 100% polyester fabric mesh liner that wicks sweat. The garment features vents, front zipper closure with protective flap, adjustable attached web belt, side slash pockets and expandable leg patch pockets. There is textile padding in the groin and knee areas.

Both pants feature an oversize fit that allows protective equipment (e.g., knee pads) to be worn underneath the pants. The water resistant coating on both models is not visible to the naked eye.

In your letter, you state that Dye Precision currently classifies the C5 Pant and the Proto Pant in subheading 6203.43.4010, HTSUSA, which provides for: “Men’s or boys’ suits, ensembles, suit-type jackets, blazers, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Other, Trousers and breeches: Men’s.” However, you state that Dye Precision believes that this classification is incorrect and that both styles of paintball pants are properly classified as “sports equipment.”

ISSUE:

Whether the C5 Pant and the Proto Pant are classified in heading 9506, HTSUSA, as other equipment for athletics, heading 6203, HTSUSA, as men’s trousers, or heading 6211, HTSUSA, as other garments.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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 then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Heading 9506, HTSUSA, 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 language of the HTSUSA evidences intent that all articles for use in sports are not classified under heading 9506, HTSUSA. Certain articles for use in sports are specifically excluded from Chapter 95, HTSUSA. For example, note 1 to Chapter 95, HTSUSA, specifically excludes, among other articles, sports footwear of chapter 64 (note 1(g)), sports headgear of chapter 65 (note 1(g)), and sports clothing of chapter 61 or 62 (note 1(e)) from Chapter 95 and, therefore, from heading 9506, HTSUSA. Additionally, other articles for use in sports are specifically named, and therefore classified in, provisions outside of Chapter 95, HTSUSA. Other articles for use in sports are classified in provisions outside of Chapter 95, HTSUSA pursuant to guidance from the ENs.

The ENs 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 ENs 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.” However, mirroring note 1(e) to Chapter 95, HTSUSA, the ENs to heading 9506 specifically state that sports clothing of textiles of chapter 61 or 62 is excluded from the chapter.

In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir., 2004), hereinafter referred to as “Bauer,” the Court of Appeals for the Federal Circuit (CAFC) found two styles of hockey pants with textile shells and interior assemblies of hard plastic guards and soft pads to be more specifically described as sports equipment under heading 9506, HTSUSA, than as sports clothing in Chapter 62, HTSUSA. As a consequence, the CAFC found that the articles were excluded from classification as sports clothing in Chapter 62, HTSUSA, pursuant to Note 1(t) to Section XI, HTSUSA (which excludes “Articles of Chapter 95” from classification in Section XI, HTSUSA, the section of the HTSUSA containing Chapter 62) and classified the pants in heading 9506, HTSUSA, as sports equipment.

In light of the Bauer decision, 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 (e.g., tops, pants, shorts, etc.) will be classified as protective sports equipment in heading 9506, HTSUSA, if they are primarily worn for protection and are akin to the exemplars set forth in the EN to heading 9506. 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 impact 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 make the articles impractical to use as everyday wearing apparel.

Articles of this nature not primarily worn for protection (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, HTSUSA. They will generally be classified as sports clothing in Chapter 61 or 62, HTSUSA. The fact that these articles provide some degree of protection or are used only in sports is irrelevant, as it has been acknowledged that sports clothing can provide protection and Chapter 61 and 62 are not use provisions. See H.I.M./Fathom, Inc. v. United States, 21 C.I.T. 776 (Ct. Int'l Trade 1997) in which the Court of International Trade held that neoprene wetsuits and related articles were “sports clothing” and not other “water-sport equipment.” Protection is one of the common purposes for wearing apparel.

While the C5 Pant and the Proto Pant do incorporate textile padding in the groin and knee areas, the padding is insubstantial. The padding offers only minimal protection against ground abrasions and paintballs. The pants do not provide protection akin to the protection provided by the exemplars set forth in the EN to heading 9506. In light of this, we find that the C5 Pant and the Proto Pant are not classified as protective sports equipment in heading 9506, HTSUSA. Rather, the pants are among the articles for use in sports not intended to be classified under heading 9506, HTSUSA. But see Headquarters Ruling Letter (HQ) 967740, dated June 21, 2005, in which soccer shinguards in specially-fitted socks were classified in heading 9506, HTSUSA, as protective sports equipment.

We note that the pants are sold online in the “Pants” section of Dye Precision’s website, not in the section for protective gear (“Harness/Protect”). Dye Precision also sells protective gear, such as hard plastic knee pads, that are worn under these pants. If the C5 Pant and Proto Pant were protective sports equipment, it is unlikely that additional layers of protective equipment covering the same parts of the body would be necessary.

In your letter, you state that Dye Precision currently classifies the C5 Pant and the Proto Pant in heading 6203, HTSUSA, as men’s trousers. CBP has taken the view that the headings for trousers and shorts, including heading 6203, cover conventional apparel and not apparel which is specialized for a specific, narrow purpose and limited in use to that purpose as evidenced by the construction of the garment. See HQ 957469, dated November 7, 1995, on the classification of knit baseball and football compression shorts. The C5 Pant and the Proto Pant are not articles of conventional apparel. Rather, the pants are specialized articles of apparel designed to be worn only while paintballing. As a result, we find that they are not classified in heading 6203, HTSUSA.

Heading 6211, HTSUSA, provides for: “Track suits, ski-suits and swimwear; other garments. The EN to heading 6211 states, in pertinent part, that the EN to heading 6114 concerning other garments apply, mutatis mutandis, to the articles of heading 6211. Heading 6114 provides for: “Other garments, knitted or crocheted.” The EN to this heading state, in relevant part:

This heading covers knitted or crocheted garments which are not more specifically in the preceding headings of [Chapter 61].

The heading includes, inter alia:

(5) Special articles of apparel used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts, leotards).

CBP 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. See HQ 957469. Thus, while football pants or baseball pants 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. Id. In determining if a particular garment is classifiable as a special article of sports apparel classifiable in heading 6114 or, as in this case, heading 6211, CBP has looked to whether the garment is designed to be worn while engaged in a specific sport as illustrated by its ability to serve a particular function for that sport, such as, give additional protection to the wearer, and its recognized uniqueness to that sport. Id. Finally, and crucially, CBP also looks to whether the garment would be worn only while participating in the sport for which it is designed and would not ordinarily be worn at any other time.

The C5 Pant and the Proto Pant are specialized articles of apparel designed to be worn only while paintballing. The pants incorporate features that make them particularly suited to paintballing, such as an oversized fit, textile padding in the groin and knees, and a mesh liner that wicks sweat. Due to these features, we find it unlikely that the pants would be worn at any other time than while paintballing. As a result, we find that the pants are special articles of apparel used for paintball and are, accordingly, classified in heading 6211, HTSUSA, as other garments.

HOLDING:

The paintball pants at issue, the C5 Pant and the Proto Pant, are classified in heading 6211, HTSUSA. They are specifically provided for in subheading 6211.33.0061, HTSUSA, which provides for, “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers: Other.” The applicable column one, general duty rate under the 2005 HTSUSA is 16 percent ad valorem.

Sincerely,

Gail A. Hamill, Chief

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