CLA-2 RR:CR:TE 962072 RH

Port Director
U.S. Customs Service
50 South Main Street
St. Albans, VT 05478

RE: Protest 0201-98-100029; Classification of ice-hockey pants; protective padding; heading 6211, HTSUSA; sports equipment; heading 9505, HTSUSA; Note 1(c), Chapter 95, HTSUSA

Dear Sir:

On July 27, 1998, we received a Customs Protest and Summons Information Report with attachments, concerning the Application for Further Review of Protest (AFR) number 0201-98-100029. The law firm of Grunfeld, Desiderio, Lebowitz & Silverman LLP, timely filed the AFR, on behalf of Bauer USA, Inc., on June 24, 1998, contesting the classification of ice-hockey pants as sports clothing under heading 6211 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Review of the protest is warranted pursuant to 19 CFR §174.24. However, we note that counsel filed a request for an administrative ruling on behalf of the protestant, concerning identical merchandise, after the entries in question were liquidated, but before the protest was filed. We further note that counsel declared in SECTION V of the Protest (Customs Form 19) that there were no pending applications for an administrative decision on the same claim with respect to the same category of merchandise. Our office addressed this issue in more detail in a separate letter to counsel referenced as HQ 961950.

FACTS:

The record reflects that the protestant filed five entries between May and June 1997, covering ice-hockey pants. The protestant classified the ice-hockey pants under heading 9506, HTSUSA, which encompasses ice-hockey articles and equipment. Customs determined that the articles were “sports clothing” and liquidated the entries between March and April 1998, under heading 6211, HTSUSA. - 2 -

The invoices and entry documents establish that the protestant entered six styles of ice-hockey pants, identified as HP100, HP500, HP1000, HP3000, HP5000 and HP88. All styles appear to have the same construction features, i.e., knee length with lace up closure and sewn in padding. A catalogue advertisement describes style HP5000, which appears to be the highest quality of the Bauer ice-hockey pants, as follows:

1. TRUE-FIT BELT The belt on the HP5000* pant is located on the inside, directly against the skin. Instead of tightening the belt over nylon, foams and stitching, the belt is directly against the body, so the pant shifts less keeping padding in its proper position.

2. MESH VENTING The HP5000* pant has a mesh gusset to allow venting in the front of the pant, keeping the player cool. The result-the player sweats less and therefore less sweat is absorbed by the equipment so it stays light.

3. FLOATING THIGH PAD 3 mobile layers of padding have been incorporated in the HP 5000* pant. The large thigh pad has been reduced and a floating one added to fill in any gaps without restricting movement. This innovative design makes the pant more comfortable and easier to break in.

4. REMOVABLE OUTER SHELL You never have to give up your favorite pant.

Counsel states that the ice-hockey pants are designed to protect the players waist, thigh, kidney and hip area. The protestant markets the articles as “protective equipment.”

ISSUE:

Are the ice-hockey pants under protest classifiable in heading 6211, HTSUSA, as sports clothing or under heading 9506, HTSUSA, as ice-hockey equipment?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Subheading 6211.33.0061, HTSUSA, provides for “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers: Other.”

Subheading 9506.99.2580, 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 this chapter; swimming pools and wading pools; parts and accessories thereof: Other: Other: Ice-hockey and field-hockey articles and equipment, except balls and skates, and parts and accessories thereof: Other, including parts and accessories.” - 3 - Note 1(e), Chapter 95, HTSUSA, excludes from classification within that chapter “Sports clothing or fancy dress, of textiles, of chapter 61 or 62.” (Emphasis supplied).

In interpreting the terms of the headings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes, which, although not legally binding, are recognized as the official interpretation of the Harmonized System at the international level.

Counsel argues that the hockey pants are similar to the protective gear listed in EN 95.06(B)(13). It reads:

This heading covers:

* * * *

(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.:

* * * *

(13) Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards.

Additionally, counsel contends that Customs prior rulings classifying ice-hockey pants under heading 6211 are not applicable to the instant articles, as those rulings pertained to “old-style” pants. Counsel describes such articles in his submission as follows:

Hockey pants originally were simply non-padded or slightly padded shorts worn over a protective girdle. The old styles hung from the body by suspenders and were very baggy compared to today’s sleek, contoured and form-fitted models that offer outstanding protection. Cooper equipment invented this trend towards a snug fit with their original “Cooperall” pants. (Bauer acquired Cooper several years ago.) The pads and protection of the hockey player were contained in a “girdle” and were covered by either a traditional short or a long nylon shell, resembling sweatpants. We believe that this old-style of pant may have been the subject of Customs’ prior rulings.

Unlike the older style of hockey pants, counsel claims that the articles under protest are protective equipment because the pants and protective girdle are combined into one composite article and that “the integrated padding is the purpose for the equipment; the pant shell merely holds the protective portion in the correct location.”

- 4 -

Although the evolution of hockey pants may now provide more or better protection, Customs has ruled on ice-hockey pants with padding and which did not have a separate girdle. In Headquarters Ruling Letter 086973, dated April 30, 1990, Customs classified hockey pants which were similar to the ones at issue in this case under heading 6211, i.e., they had padding sewn inside the pants and additional padding which could be inserted into the pants; they were knee length and laced up the front. We note that the importer in that ruling made the same argument addressed herein - that in view of the protective function the hockey pants should have been classified as sports equipment under heading 9506.

We examined two of the imported styles of hockey pants in this case, and we agree with counsel that the padding sewn inside the hockey pants in question is designed to provide protection to a player and is critical for this purpose. The “True Fit” style has a permanently attached belt and pads. In HQ 086973, we determined that padded hockey pants were not hockey equipment under heading 9506 because Note 1(c), Chapter 95, HTSUSA, excludes sports clothing of Chapters 61 and 62, HTSUSA, from classification within that chapter. We further held that heading 9506 “embraces only certain forms of protective gear, and that sports clothing, regardless of the protection they afford the wearer, is still excluded.” (Emphasis supplied). See, HQ 951640, dated July 16, 1992 (For purposes of subheading 9902.62.01 -- (1) The terms “sports clothing” refers to (A) ice hockey pants, provided for in subheadings 6113.00, 6114.30, 6210.40, 6210.50, 6211.33 or 6211.43); HQ 956289, dated June 20, 1994 (Sports clothing, regardless of any protective features indicating it is designed specifically for a particular sport, is excluded from Chapter 95, HTSUSA, with no exceptions). (Emphasis supplied). Based on the foregoing precedent, the “True Fit” style is classifiable as a garment in heading 6211, HTSUSA, under the principles of GRI 1.

Furthermore, the rulings cited by counsel to support his claim that the ice hockey pants are not sports clothing are not persuasive. HQ 088288, dated April 4, 1991, involved an equestrian “vest” worn underneath a riding jacket. We held that it was not apparel but was analogous to elbow pads, knee pads, cricket pads and shin-guards of Chapter 95. In HQ 957183 dated December 21, 1994, we classified a wristband with a protective insert as a set under heading 9506, because the padding provided the essential character to the set. The padded wristband, like the equestrian “vest” is analogous to elbow pads, knee pads, cricket pads and shin-guards, and is not apparel.

The other style we examined, HP 5000, has an internal belt and three layers of polyethylene and/or polyurethane foam padding in front, around the thigh, and around the waist. This portion of the article is removable from the shell or pant which itself has some sewn-in pads. We agree with counsel that this style, consisting of the removable belt with pads and a pant/shell is a composite good consisting of separable parts which, if entered separately, would be classifiable in different headings. The belt with pads would be classifiable as ice-hockey equipment under subheading 9506.99.2580, HTSUSA, and the pants would be classifiable under subheading 6211.33.0061, HTSUSA.

- 5 -

Since this style is a composite good, its classification hinges on a GRI 3 analysis. GRI 3(a) directs classification be based upon the most specific heading, however, when two or more headings each refer to only part of the components in a composite good, each heading is to be considered equally specific. Under GRI 3(b), HTSUSA, the material or component which imparts the essential character to an article will determine classification. See, HQ 956123, dated July 14, 1994 (When a textile belt is imported with a garment and it is intended to be sold at the wholesale and retail level as a single unit, the articles will be considered composite goods for tariff classification purposes - in this case a woman’s denim romper and textile belt were classifiable under GRI 3(b) as a cotton garment); HQ 954427, dated October 13, 1993 (A women’s skirt with a removable slip-like lining was classifiable under GRI 3(b) in heading 6204, HTSUSA, as a skirt).

In this case, although we agree with counsel that the belt with attached pads provides necessary protection to the player, we find that it is the pant or shell that provides the essential character to style HP 5000. The pant or shell gives the article its form, covers the lower portion of the body, holds the pads in place and itself provides some protection to the player. Thus, under the principles of GRI 3(b), style HP 5000 is classifiable as pants under heading 6211, since that is the component which imparts the essential character to the article.

Finally, the rulings from Revenue Canada and the European Union classifying hockey pants under heading 9506 are not controlling in this case and do not reflect the United States interpretation of heading 9506.

Accordingly, we find that Customs liquidation of the ice-hockey pants under heading 6211 was proper.

HOLDING:

The protest should be DENIED. The ice-hockey pants are classifiable under subheading 6211.33.0061 of the 1997 HTSUSA. That provision provides for “Track suits, ski-suits and swimwear; other garments: Other garments, men’s or boys’: Of man-made fibers: Other.” The merchandise is dutiable at the 1997 general column one rate of 16.7 percent ad valorem and the textile category is 659.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

- 6 -

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs Personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division