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HQ 967621




November 23, 2005

CLA-2 RR:CTF:TCM 967621 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

Ms. Susan Andriuzzo
Ken Hamanaka Co., Inc.
5777 West Century Blvd.
Los Angeles, CA 90045

RE: Classification of Athletic Supporter and Protective Cup; NY 801913 revoked

Dear Ms. Andriuzzo:

On October 4, 1994, the U.S. Customs Service, now known as the Bureau of Customs and Border Protection (CBP), issued New York Ruling Letter (NY) 801913 to you on behalf of Pam & Frank (USA) Industrial Co, Ltd. In NY 801913, CBP classified an athletic supporter imported with a protective cup under subheading 6212.90.0030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for: “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Other, Of man-made fibers or man-made fibers and rubber or plastics.”

We have reviewed NY 801913 and have determined that the classification of the athletic supporter with protective cup is incorrect. This ruling sets forth the correct classification of that article.

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 801913 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 athletic supporter is recognized as the “Style 80-02-44.” It is constructed of a 3-inch elasticized man-made fiber waistband. It has 1-inch elasticized leg straps and a front pouch. The protective cup is hard plastic with a rubber-like cushioned edge. The protective cup is specially-fitted to be inserted into and housed in the front pouch of the athletic supporter.

ISSUE:

Whether the athletic supporter with protective cup is classified in heading 9506, as other equipment for athletics.

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 subject athletic supporter with protective cup is primarily worn for protection during sports and affords protection akin to the exemplars of heading 9506. It incorporates a hard plastic protective cup designed exclusively to protect the groin against injury by absorbing blows, collisions, or flying objects while participating in sports. This protective cup is specially-fitted to the athletic supporter. The features of the article makes it especially suited for sports and impractical to use as everyday wearing apparel. Therefore, we find that the instant athletic supporter with protective cup is classified in heading 9506, HTSUSA.

HOLDING:

The athletic supporter with protective cup (Style 80-02-44) is classified in subheading 9506.99.6080, HTSUSA, which provides for, among other articles, “Articles and equipment for general physical exercise, gymnastics, athletics, other sports : Other: Other: Other, Other.” The applicable column one, general duty rate under the 2005 HTSUSA is 4 percent 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.

EFFECT ON OTHER RULINGS:

NY 801913, dated October 4, 1994, 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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