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HQ 967478




November 23, 2005

CLA-2 RR:CTF:TCM 967478 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.2580

Mr. Johnny Mucciarone
TradeAid Consultants, Inc.
Delmar International, Inc.
10636 Cote De Liesse
Lachine, Quebec H8T 1A5

RE: Classification of hockey jocks; NY K88490 revoked

Dear Mr. Mucciarone:

This is in response to your letter dated November 22, 2004, requesting reconsideration of New York Ruling Letter (NY) NY K88490, dated August 19, 2004. In NY K88490, the Bureau of Customs and Border Protection (CBP) classified two models of what were referred to as “hockey protective shorts from Taiwan” in subheading 6114.30.3060 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for: “Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Men’s or boys’.”

We have reviewed NY K88490 and have determined that the classification of the merchandise at issue is incorrect. This ruling sets forth the correct classification of the merchandise.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY K88490 was published in the Customs Bulletin, Volume 39, Number 30, on July 20, 2005. CBP received one comment during the notice and comment period. This comment recommended a small language change in regard to the characterization of the sliding pads in the shorts that are the subject of Headquarters Ruling (HQ) 967622 and did not pertain to the merchandise at issue in the instant ruling.

FACTS:

The models at issue are specifically identified as the “Itech Jock Regular (200)” and the “Itech Jock Regular (201).” The articles are “hockey jocks,” jock straps with removable protective cups permanently attached to 100% polyester knit mesh shorts. The shorts have elasticized waistbands with drawstrings. On the outside, the shorts have four hook and loop attachments (one on the front and back of each leg) that are designed to affix to hockey hose and keep it in place.

In your letter dated November 22, 2004, you assert that the models at issue in NY K88490 were incorrectly classified and are properly classifiable in subheading 9506.99.2580, HTSUSA, which provides for, among other articles, other articles of hockey equipment. You supplemented your letter dated November 22, 2004 with a letter dated January 6, 2005, in which you present additional arguments supporting classification of the shorts in subheading 9506.99.2580, HTSUSA.

ISSUE:

Whether the Itech Jock Regular (200) and (201) models are classified in heading 9506, HTSUSA, as other articles of hockey equipment.

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.” Sports clothing, alternatively, is classified in Chapter 61 or 62, HTSUSA. Note (e) to Chapter 95, HTSUSA, specifically excludes sports clothing of chapter 61 or 62, HTSUSA, from classification in Chapter 95. Conversely, note 1(t) to Section XI, HTSUSA, excludes “Articles of Chapter 95” from classification in Section XI, HTSUSA, the section of the HTSUSA containing Chapter 61 and Chapter 62.

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.”

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, 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 will be classified as protective sports equipment in heading 9506, HTSUSA, if they are primarily worn for protection during sports and afford protection 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 them impractical to use as everyday wearing apparel.

Articles of this nature not primarily worn for protection during sports (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 models at issue are primarily worn for protection during sports and afford protection akin to the exemplars of heading 9506. The styles incorporate a hard plastic protective cup designed exclusively to protect the groin against injury by absorbing blows, collisions, or flying objects while playing hockey. This protective cup is specially-fitted to the jock strap in the models. The features of the models make them especially suited for hockey, the use for which they are designed and marketed, and impractical to use as everyday wearing apparel. Accordingly, we find that the Itech Jock Regular (200) and (201) models are classified in heading 9506, HTSUSA.

HOLDING:

The Itech Jock Regular (200) and (201) models are classified in subheading 9506.99.2580, HTSUSA, which provides for, among other articles, other articles of hockey equipment. The applicable column one, general duty rate under the 2005 HTSUSA is “Free.” 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.

EFFECT ON OTHER RULINGS:

NY K88490, dated August 19, 2004, is hereby revoked.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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