H305702

HQ H305702 May 15, 2024 OT:RR:CTF:FTM H305702 MJD/BJK CATEGORY: Classification TARIFF NO.: 6114.30.30 Center Director Apparel, Footwear, and Textiles CEE U.S. Customs and Border Protection 11099 South La Cienega Blvd. Los Angeles, CA 90045 ATTN: Olga Ramos, Import Specialist Re: Application for Further Review of Protest No. 2720-19-100428; Classification of boys’ knit briefs with removable cups Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 2720-19-100428, timely filed on April 16, 2019, by Sandler, Travis & Rosenberg P.A., on behalf of importer, Shock Doctor, Inc. (“Shock Doctor” or “Protestant”), concerning U.S. Customs and Border Protection’s (“CBP”) tariff classification of certain types of boys’ knit briefs with removable cups under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision takes into account the written submissions with respect to this protest, samples provided, and teleconference meeting held with counsel for Protestant on March 5, 2021. FACTS: The merchandise at issue is described as boys’ knit briefs that are composed of 63 percent polyester, 32 percent cotton, and 5 percent spandex, or 90 percent polyester and 10 percent spandex, and contain a removable protective flex cup for the groin area. There are three different styles at issue: (1) a brief with a “soft cup”; (2) a brief with a “flex cup;” and (3) a boxer brief with a “flex cup.” Protestant asserts that the briefs “function to replace the need for a separate jock strap, incorporating a removable protective cup designed exclusively to protect the groin against injury by absorbing blows, collisions, or flying objects while playing sports, including baseball, football and hockey. The briefs were imported into the United States on October 2, 2017, and were entered under subheading 9506.99.60, HTSUS, which provides for “[a]rticles 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: Other: Other.” On October 19, 2018, CBP reclassified and liquidated the items under subheading 6114.30.3060, HTSUSA, which provides for “[o]ther garments, knitted or crocheted: Of man-made fibers: Other: Other: Men’s or boys’.” ISSUE: What is the tariff classification of the boys’ knit briefs with removable cups? LAW AND ANALYSIS: Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry pursuant to 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 2720-19-100428 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s liquidation of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 967622, dated November 23, 2005; HQ 967478, dated November 23, 2005; HQ 967623, dated November 23, 2005; and New York Ruling Letter (“NY”) N057177, dated May 1, 2009. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 be applied in order. The 2017 HTSUS provisions under consideration are as follows: 6114: Other garments, kitted or crocheted: * * * 9506: 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: * * * Note 1(e) to Chapter 95, HTSUS, provides in part: 1. This chapter does not cover: . . . (e) Fancy dress of textiles, of chapter 61 or 62; sports clothing and special articles of apparel of textiles, of chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas (for example, fencing clothing or soccer goalkeeper jerseys); * * * In addition, the Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The EN to 95.06 provides the following, in pertinent part: 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, ice hockey pants with built-in guards and pads. * * * Protestant asserts that the proper classification for the briefs at issue is in heading 9506, HTSUS. Heading 9506, HTSUS, provides for “[a]rticles 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.” The EN to heading 95.06 states 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 heading 95.06 specifically states that category (B) includes, “[p]rotective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads.” See EN 95.06(B)(13). However, Note 1(e) to Chapter 95 (“Note 1(e)”) states that this chapter does not include “[f]ancy dress of textiles, of chapter 61 or 62; sports clothing and special articles of apparel of textiles, of chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas (for example, fencing clothing or soccer goalkeeper jerseys).” The Court of Appeals for the Federal Circuit (“CAFC”) has issued several opinions considering the tariff term “sports equipment” in the context of Note 1(e) and protective apparel designed for use in sports. In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir. 2004), the CAFC addressed the classification of hockey pants worn to protect the wearer from injury while playing hockey. Id. at 1248. The hockey pants were designed with an “exterior nylon or polyester textile ‘shell’ and an interior assembly of hard nylon plastic guards and soft polyurethane, polyethylene, or polyester foam padding attached to a belt. The internal guards, pads, and belt collectively [comprised of] about 80% of the total weight of the hockey pants.” Id. The CAFC held that because the hockey pants were “specially designed and intended for use only while playing ice hockey,” they were “prima facie classifiable under subheading 9506.99.25 as ice-hockey equipment.” Id. at 1251. The CAFC further refined its definition of sports equipment in LeMans Corp. v United States, 660 F.3d 1311 (Fed. Cir. 2011), where it found that motocross jerseys, motocross pants, and motorcycle jackets were not classifiable in heading 9506, HTSUS. The merchandise in that case was “designed, engineered, and produced exclusively for use while participating in motocross activi

Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry pursuant to 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 2720-19-100428 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s liquidation of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 967622, dated November 23, 2005; HQ 967478, dated November 23, 2005; HQ 967623, dated November 23, 2005; and New York Ruling Letter (“NY”) N057177, dated May 1, 2009. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 be applied in order.The 2017 HTSUS provisions under consideration are as follows:6114: Other garments, kitted or crocheted:* * *9506: 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: * * *Note 1(e) to Chapter 95, HTSUS, provides in part:1. This chapter does not cover:. . . (e) Fancy dress of textiles, of chapter 61 or 62; sports clothing and special articles of apparel of textiles, of chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas (for example, fencing clothing or soccer goalkeeper jerseys); * * *In addition, the Explanatory Notes (“E