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HQ 968013

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March 3, 2006

CLA-2 RR:CTF:TCM 968013 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3060, 9506.99.2000

Jessica R. Rifkin, Esq.
Thomas J. O’Donnell, Esq.
Rodriguez, O’Donnell, Ross, Fuerst, Gonzalez, Williams & England, P.C. 8430 West Bryn Mawr Avenue
Suite 525
Chicago, IL 60631

RE: Classification of football pants and football pads

Dear Ms. Rifkin and Mr. O’Donnell:

This is in reply to your letter, on behalf of Wilson Hunt International, Ltd. (“Wilson Hunt”) dated October 25, 2005 to the National Commodity Specialist Division (“NCSD”), submitted pursuant to 19 C.F.R. §177, requesting the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of certain football pants imported with foam football pad sets. As you know, your letter was forwarded to this office for a reply. You supplemented your ruling request letter, by e-mail, on December 22, 2005. Additionally, we conducted an oral discussion of issues with you pursuant to 19 CFR §177.4 on February 21, 2006.

FACTS:

The football pants at issue fall into two broad categories: (i) those designed to hold 7-piece football pad sets using snaps and slots, and (ii) those designed to hold 7-piece football pad sets using only slots. You state that five models fall into category 1: style numbers FPY, X-FPY, FPY6, SAFPY4, and SAFPY. You state that eight models fall into category 2: style numbers FPA7, FPY7, FP2Y, FPA, FPY7, SAFPY2, SAFPY5, and X-FPY2. However, we believe style number FPY7 was mistakenly listed twice and that there are only seven models at issue in category 2.

You state that the models in category 1 have “internal waist snaps for attachment of two protective hip pads and one protective tail pad.” You continue: “[t]his category also features a laced front closure, an elasticized waist, two large inside pockets in the thigh area for insertion of thick protective pads, and two large inside pockets in the knee area for insertion of thick protective pads. These styles are intended for the youth market, and are made only in youth sizes.”

You state that the models in category 2 have “slots for a belt used for attachment of two protective hip pads and one protective tail pad”. You continue: “[t]his category also features a laced front closure, two large inside pockets in the thigh area for insertion of thick protective pads, and two large inside pockets in the knee area for insertion of thick protective pads. The slot-type styles are made for men and youths, although they tend to be worn primarily by adults.”

You do not provide any further detail on how the models differ from other models in their category. You state that all style numbers are constructed of double-knit 100% polyester fabric, that all of the pants have an elasticized cuff and extend to just below the knee, and that each model is specifically sized for either men or boys. You provided samples of models FP2Y (labeled “FPY-2”) and FPY. All of the pants are marketed under the Champro® Sports Equipment brand name. You state that all of the pant models are made in Pakistan.

In New York Ruling (“NY”) G84328, dated December 8, 2000, we classified style numbers FPY, FP2Y (“referred to as “FPY2” in the ruling), and FPA, imported separately (without the foam football pad sets), in subheading 6114.30.3060, HTSUSA, which provides for: “Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Men’s or boys’.

In your letter, you describe the foam football pad sets at issue as follows:

The pads consist of a set of seven pads for each pair of football pants to be imported. The set includes two hip pads; one tail pad; two thigh pads; and two knee pads. All pads in the set are made of closed cell foam rubber, which is more rigid and offers greater protection than open cell foam rubber. The hip pads are made of foam rubber, approximately 3/8-1/2 inch thick for youth sets and 1/2-5/8 inch thick for adult sets. On certain sets, the hip pads also feature a piece of hard plastic sewn to the outside of the pad. The tail pad is made of foam rubber and is approximately 3/8-1/2 inch thick for youth sets and 1/2-5/8 inch thick for adult sets. On certain sets, the tail pad also features a piece of hard plastic sewn to the outside of the pad. The thigh pads are made of foam rubber, and are approximately 3/8-1/2 inch thick for youth sets and 1/2-5/8 inch thick for adult sets. The thigh pads for all sets of pads feature a piece of hard plastic sandwiched between two layers of foam. The front of the thigh pad also has ridges for additional protection. The knee pads are constructed of foam rubber and are approximately 3/8-1/2 inch thick for youth sets and approximately 1/2-5/8 inch thick for adult sets.

We believe that the foam football pad sets will also be marketed under the Champro® Sports Equipment brand name. However, the samples of the pad sets that you provided are marketed under the United Athletic brand name. You state the foam football pad sets are made in Taiwan.

In your letter, you indicated that while the pads will not be inserted into the football pants at the time of importation into the United States, the football pants will be imported into the United States with the football pad sets. You state:

The pants and pads will be shipped together via ocean containers, at the same time and on the same vessel, from Taiwan. A matching number of pants and pads will be shipped, i.e. 8,000 pairs of pants will be shipped, together with 8,000 sets of pads, consisting of a set of seven pads for each pair of pants entered. The pants and pads will be entered together in a single entry in the port of Chicago. Subsequent entries of pants and pads into the ports of Los Angeles and New York will be shipped and entered in the same manner.

The articles will not be packaged together at the time of importation. You state that the pads in the sets will not be inserted into the football pants “for reasons of convenience in packing and transport.” In your December 22, 2005, e-mail, you further explained that:

The pads will be of the size and type ordinarily used and sold with the football pants. The pants and pads, therefore, will constitute kits, which will be sold together. The pants and pads will be segregated and stored separately from other football pants and pads that make up the company’s general inventory of football pants and pads.

You state that the football pants and the foam pad sets will be sold together, with the pants and pads shipped in separate bags or boxes, or with the pads inserted into the pants.

In your letter, you assert that the football pants and foam football pad sets should be classified, pursuant to GRI 2(a) as “unassembled sports equipment” in heading 9506, HTSUSA, because they are dedicated to and designed and constructed for use only with each other, are imported unassembled for reasons of convenience in packing and transport, and are imported at the same time, in the same shipment, in matching numbers.

ISSUE:

Are the football pants and foam football pad sets separately classified in the HTSUSA pursuant to GRI 1, or are the articles “unassembled sports equipment” classified in the HTSUSA pursuant to GRI 2(a)?

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 tabletennis) or outdoor games, not specified or included elsewhere in [Chapter 95]; swimming pools and wading pools; parts and accessories thereof." The EN 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 EN 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).

By asserting that the football pants and foam football pad sets at issue are classified as “unassembled sports equipment” in heading 9506, HTSUSA, pursuant to GRI 2(a), you implicitly assert that the merchandise cannot be classified pursuant to GRI 1. While GRI 2 may only be applied after GRI 1 is exhausted, we will nevertheless address your assertion first, then explain why the merchandise at issue is properly classified, as separate articles, pursuant to GRI 1.

GRI 2(a) states:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

The EN to Rule 2(a), in relevant part, states that:

(V) The second part of Rule 2 (a) provides that complete or finished articles presented unassembled or disassembled are to be classified in the same heading as the assembled article. When goods are so presented, it is usually for reasons such as requirements or convenience of packing, handling or transport.

(VII) For purposes of this Rule, “articles presented unassembled or disassembled” means articles the components of which are to be assembled either by means of fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only assembly operations are involved.

No account is to be taken in that regard of the complexity of the assembly method. However, the components shall not be subjected to any further working operation for completion into the finished state.

(VIII) Cases covered by this Rule are cited in the General Explanatory Notes to Sections or Chapters (e.g., Section XVI, and Chapters 44, 86, 87 and 89).

In our oral discussion, you stated that the football pants and the foam football pad sets (two unassembled “parts”) would be assembled after importation into “football pants” (the single “assembled article”) that constitute protective sports equipment. Assembly would simply entail putting the pads in the pants using the pants’ snaps and slots. However, “football pants” are commonly and commercially recognized as the lower body garments in a football uniform; they are special articles of apparel worn while playing football which usually fall to just below the knee, usually made of stretch polyester, often incorporating snaps and/or pockets to affix pads, full duke crotches, and slotted waistbands. “Football pants,” as commonly and commercially recognized, do not incorporate guards and soft pads.

While some types of articles commonly and commercially recognized as “pants” worn while participating in sports, such as some types of “hockey pants,” incorporate guards and soft pads, “football pants” do not. See, e.g., the “Uniforms” sections of these large retailers of football clothing and equipment: www.footballamerica.com and www.teamfootballuniforms.com. We have thoroughly researched the issue and have been unable to find any types of “football pants” that are commonly or commercially recognized as protective sports equipment. We note that Wilson Hunt markets and sells the football pants at issue in this ruling in the “Uniforms” section of its websites. See www.champrosports.com and www.unitedathletic.net.

Whereas “football pants” are commonly and commercially recognized as special articles of apparel, the football pads normally inserted into football pants are commonly and commercially recognized as protective pads. See the “Protective Equipment/Pads” section of www.footballamerica.com and the “Varsity Football Pads - Hip Pad Sets” section of www.adamsusa.com. We also note that Wilson Hunt markets and sells the foam football pad sets at issue in this ruling in the “Ultra Light Foam Pads” section of its websites. See www.champrosports.com and www.unitedathletic.net.

“Football pants” and “football pads” are commonly and commercially recognized as distinct and separate articles, and are traditionally sold separately. We also recognize the existence of “football girdles,” which are defined by a large retailer of football clothing and equipment as “close fitting shorts worn under football pants that have built-in pockets to hold either 3 pad sets (2 hip pads and 1 tailbone pad) or 5 pad sets (2 hip pads, 1 tailbone pad, and 2 thigh pads).” See www.footballamerica.com. While you have not asserted that the football pants and foam football pad sets at issue are “unassembled football girdles,” we note that “football girdles” and “football pads” are also commonly and commercially recognized as distinct and separate articles, and are also traditionally sold separately.

See, e.g., www.footballamerica.com and www.adamsusa.com. We note that Wilson Hunt sells these articles separately and makes no mention of selling the football pants and foam football pad sets at issue together on www.champrosports.com or www.unitedathletic.net. The samples that we received also do not share the same brand name.

It is a well-established rule that a "part" of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article. See United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, T.D. 46851 (1933) and cases cited therein. The mere fact that a plurality of articles may be used together does not necessarily make each article in the plurality a constituent “part” of a single article. See ABB, Inc. v. United States, 421 F.3d 1274 (Fed. Cir. 2005), citing Willoughby Camera. The mere fact that two articles are designed and constructed to be used together, does not necessarily make either a part of the other. See Willoughby Camera. Where an article "performs its separate function without loss of any of its essential characteristics," and, whether separate or joined, is "complete in itself," that article is a "distinct and separate commercial entity" and not a "part." See ABB, Inc., citing Willoughby Camera.

We do not dispute that the football pants and foam football pad sets would likely be used together. We recognize that youth and adult football teams may order their uniforms and protective pads, as well as other articles, from a single supplier. Keeping this in mind, however, the importation, in one shipment, of two articles which are commonly and commercially recognized and traditionally sold as separate articles does not transform those articles into unassembled “parts” of an alternate piece of merchandise. In this case, there is not even commercial recognition of the type of article that you assert constitutes the single “assembled article;” after thorough research, we remain unaware of any “football pants” that are commonly or commercially recognized as protective sports equipment.

We acknowledge that textile articles worn on the person while participating in sports incorporating guards, pads, or foam classified in heading 9506, HTSUSA, as protective sports equipment may, in some instances, have specially-fitted non-textile protective guards and/or pads that are removable. Textile articles worn on the person while participating in sports incorporating guards, pads, or foam are 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 and are akin to the exemplars of protective sports equipment set forth in the EN to heading 9506. However, those removable specially-fitted non-textile protective guards and/or pads are part of an article that, as a single assembled article, is commonly and commercially recognized as an article of protective sports equipment (e.g., an athletic protector, soccer shinguards, or a hockey jock). Such removable protective guards and pads will generally be incorporated in, packaged with, and sold with the single assembled article at the time of importation.

In this case, the articles under review function separately: the pants function as a specialized lower body garment and the pads function as protective sports equipment. While there may be legitimate logistical reasons for routing the football pants (made in Pakistan) through Taiwan and importing them with the pads, this process does not transform the pants and pads into a new article of protective sports equipment. We disagree with your assertion that the football pants and pad sets are “dedicated to and designed and constructed for use only with each other.” The pants and pads at issue can be purchased separately and used independently, with other types of pants and pads, respectively (different types distributed by Wilson Hunt and even those distributed by other companies). The construction of both the pants and foam football pad sets is generic; neither have any design feature that makes them suitable only for each other. Even the positioning of the internal waist snaps in the category 1 pants and the youth pads with snaps is generic. “Snap-in” pads are common for youth pads and these pads can be used with pants distributed by other companies.

Because the football pants and foam football pad sets are distinct and separate commercial entities, there is no principled basis for classifying the articles as a single "assembled" article merely because they will be used together or sold together as a “kit” after importation. Consequently, the articles are classified separately.

As stated above, the foam football pad sets are commonly and commercially recognized as protective pads for football. They are specifically provided for by subheading 9506.99.2000, HTSUSA, which 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: Football, soccer and polo articles and equipment, except balls, and parts and accessories thereof” and, accordingly, are classified in that provision pursuant to GRI 1.

In regard to the football pants at issue, heading 6114 provides for: “Other garments, knitted or crocheted.” The EN to this heading state, in relevant part:

This heading covers knitted or crocheted garments which are not included 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 6114 (for knitted and crocheted garments) 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 generally Headquarters Ruling (“HQ”) 951640. In determining if a particular garment is classifiable as a special article of sports apparel classifiable in heading 6114 or heading 6211, 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.

The football pants at issue are clearly designed to be worn while engaging in football. The pants have special design features that make them suitable only for football. See NY G84328 in which the same determination was reached in regard to style numbers FPY, FP2Y (“referred to as “FPY2” in the ruling), and FPA. These features include a laced front closure, a double-knit 100% polyester fabric construction that provides a tight fit to just below the knee, and internal snaps and/or slots that hold a player’s pads in place. Because of their special design features, we find that the pants would be worn only while participating in football and at no other time. The pants are also commonly and commercially recognized as special articles of apparel for football. Accordingly, we find that they are specifically provided for by subheading 6114.30.3060, HTSUSA, which provides for: “Other garments, knitted or crocheted: Of man-made fibers: Other, Other: Men’s or boys’” and, accordingly, are classified in that provision pursuant to GRI 1.

HOLDING:

The football pants at issue (identified as style numbers FPY, X-FPY, FPY6, SAFPY4, SAFPY, FPA7, FPY7, FP2Y, FPA, SAFPY2, SAFPY5, and X-FPY2) are 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 2006 HTSUSA for each of these styles of football pants is 14.9 per cent ad valorem. Each of these styles of pants falls into textile category 659.

The foam football pad sets at issue are classified in subheading 9506.99.2000, HTSUSA, which 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: Football, soccer and polo articles and equipment, except balls, and parts and accessories thereof.” The applicable column one, general duty rate under the 2006 HTSUSA for the foam football pad sets is “Free.”

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.

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.

Sincerely,

Gail A. Hamill, Chief

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See also:

• Tariff No.: 6114.30.30 - Garments nesoi, knitted or crocheted, of man-made fibers
• Tariff No.: 9506.99.20 - Football, soccer and polo articles and equipment (o/than balls), and parts & accessories thereof