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HQ 967957




December 9, 2005

CLA-2: RR:CTF:TCM: 967957 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3060

Gregory S. McCue, Esq.

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW
Washington, DC 20036-1795

RE: Classification of soccer goalkeeper pants and shorts

Dear Mr. McCue:

This is in response to your September 9, 2005 letter, on behalf of Audero Sports Supply (“Audero”), to the National Commodity Specialist Division, requesting classification of two garments under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). As you know, your letter has been forwarded to this office for response.

We conducted an oral discussion of issues with you pursuant to 19 CFR §177.4 on November 3, 2005. This letter sets forth the classification of the two garments at issue, which you identified as the Style No. 006 Goalkeeper Shorts and the Style No. 008 Goalkeeper Pants.

FACTS:

Style No. 006 Goalkeeper Shorts (“shorts”) are constructed of 100% polyester knit fabric. The shorts have an elasticized waistband with a drawstring tie. They have high-density, quilted foam padding along the sides of the hip/thigh area. The foam in this area measures approximately 10 inches square and is stitched into 16 approximately 2-1/4 inch squares. The shorts have “Olympus” embroidered on the front of the thigh area of the left leg.

Style No. 008 Goalkeeper Pants (“pants”) are constructed of 80% polyester, 20% cotton knit fabric. The pants have an elasticized waistband with a drawstring tie. They have high-density, quilted foam padding along the sides of the hip/thigh area. The foam in this area measures approximately 8 inches square and is stitched into 16 approximately 2 inch squares. The pants also have the same type of foam in the knee area, which measures approximately 6-1/2 inches tall by 5 inches wide and is stitched into 12 approximately 1-1/4 by 1-1/2 inch rectangles. The pants have “Olympus” embroidered on the front of the thigh area of the left leg. Both the shorts and pants are made in Taiwan.

In your September 9, 2005 letter and in our November 3, 2005 discussion, you asserted that the shorts and pants are classifiable in heading 9506, HTSUSA, as soccer articles and equipment.

ISSUE:

What is the classification of the shorts and pants?

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, however, 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.” See EN 95.06(B)(13). 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.

We do not dispute that the shorts and pants at issue are specifically designed for soccer goalkeepers. We also do not dispute that the shorts and pants would only be worn while playing goalkeeper in soccer or that the shorts and pants have special design features, some protective, that make them particularly suited for soccer goalkeeping. The protective features of the shorts and pants, however, do not transform the articles into protective equipment for sports provided for in heading 9506, HTSUSA.

Protection is one of the common purposes of wearing apparel. The Court of International Trade has recognized that the garment provisions of the HTSUSA include garments that provide protection during sports. 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.” While the shorts and pants at issue are certainly, in part, worn for protection, they offer only minimal protection, with the shorts incorporating only insubstantial foam padding in the hip/thigh area and the pants incorporating insubstantial foam padding in the hip/thigh and knee areas.

The articles do not provide protection akin to the exemplars set forth in EN 95.06(B)(13). The exemplars of protective sports equipment listed incorporate hard or thick internal guards or pads, providing compact protection for a specific part of the body against injury by absorbing the impact of blows, collisions or flying objects. The shorts and pants at issue, meanwhile, do not incorporate any hard guards or thick internal guards or pads. The articles do not provide compact protection for a specific part of the body. Instead, the shorts and pants are worn as garments, covering the body as would a regular pair of shorts or pants, incorporating padding not throughout, but in isolated areas where goalkeepers are most likely to make contact with the ground. This padding is insubstantial, offering only some cushioning from the ground and protection against ground abrasions.

We reject any notion that the shorts and pants at issue are substantially similar to the hockey pants that were the subject of Bauer, which were described as follows:

They are constructed of two primary components: 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 comprise about 80% of the total weight of the hockey pants.

The pants in Bauer incorporated hard plastic guards and thick pads that provided compact protection for a hockey player’s midsection and hips by absorbing the impact of blows, collisions or flying objects. The textile portion of the hockey pants was merely a “shell” that covered the underlying guards and pads. The shorts and pants at issue in this case, however, do not incorporate hard plastic guards or thick pads and do not provide compact protection for any part of the body. Unlike the hockey pants in Bauer, the shorts and pants at issue are primarily composed of knit textile fabric. This fabric not only covers the articles’ underlying padding, but provides coverage as would normal shorts or pants.

In light of the above, we find that the shorts and pants at issue are amongst the articles for use in sports not intended to be classified under heading 9506, HTSUSA. The shorts and pants are sports clothing of textile materials of Chapter 61 and, as such, are excluded from Chapter 95, HTSUSA. Cf. Headquarters Ruling Letter (HQ) 967740, dated June 21, 2005 and HQ 967738, dated September 21, 2005, in which soccer shinguards in specially-fitted socks were classified in heading 9506, HTSUSA, as protective sports equipment.

Your statement in your submission, “[i]t is important to note that [CBP] has previously reviewed both these items [in New York Ruling Letter (NY) 869348] and has already found them to be protective sports equipment, rather then simply wearing apparel” is not accurate. In NY 869348, issued to Audero on December 28, 1991, CBP classified substantially similar models of soccer goalkeeper shorts and pants as articles of wearing apparel. At the time NY 869348 was issued, however, subheading 9902.62.01, HTSUSA, a temporary provision affording duty relief to “articles of sports apparel which because of their padding, fabric, construction or other special features are specially designed to protect against injury (e.g. blows, falls, road burns or fire)” was effective. This provision provided temporary duty reductions to certain articles of sports apparel that were classified as sports equipment under the Tariff Schedule of the United States Annotated (“TSUSA”) that became subject to significantly higher rates of duty upon implementation of the HTSUSA. CBP found the shorts and pants at issue in the ruling to fall within this temporary provision for sports apparel; however, CBP did not find the shorts and pants at issue in that ruling to be classified as sports equipment under the HTSUSA.

Heading 6114, HTSUSA, provides for: “Other garments, knitted or crocheted.” The EN to heading 6114 states, in pertinent 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, dated November 7, 1995, on the classification of knit baseball and football pants. While football pants or baseball pants might be classifiable in heading 6211, HTSUSA, 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, HTSUSA, 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. Id.

We recognize the shorts and pants at issue to be special articles of apparel used for soccer. The padding in the articles provides soccer goalkeepers with cushioning and protection against ground abrasions in areas where they are most likely to make contact with the ground. Additionally, the stirrups in the pants keep the pants in place on the goalkeeper. The features of the shorts and pants are uniquely suited to soccer and, as a result, the pants would not ordinarily be worn at any other time.

HOLDING:

The Style No. 006 Goalkeeper Shorts and the Style No. 008 Goalkeeper Pants are both classified in subheading 6114.30.3060, HTSUSA, which provides for: “Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Men’s or boys’”. The applicable column one, general duty rate under the 2005 HTSUSA is 14.9% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

The Style No. 006 Goalkeeper Shorts and the Style No. 008 Goalkeeper Pants both fall within textile category 659. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China
and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

Sincerely,

Gail A. Hamill, Chief

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