HQ 962072

August 12, 1999

CLA-2 RR:CR:TE 962072 RH

CATEGORY: Classification

TARIFF NO.: 6211.33.0061

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]{.underline} 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.

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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."

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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."

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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]{.underline} 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.

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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.

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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