CBP Policy on HTS 9506 Equipment (including Certain Protective Textile Articles Designed to be Worn in Sports)
U.S. Customs and Border Protection (CBP) has issued a memorandum which informs CBP personnel and the trade community of the impact of a recent federal court case, Bauer Nike Hockey USA, Inc. v. U.S., on the classification of textile merchandise in HTS 9506.
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(In Bauer Nike Hockey USA, Inc. v. U.S. (the Bauer decision), the Court of Appeals for the Federal Circuit (CAFC) ruled that two styles of hockey pants with textile shells and interior assemblies of hard plastic guards and soft pads are "equipment" under HTS 9506, rather than "sports clothing" in HTS Chapters 61 or 62, because they were "specially designed and intended for use only while playing ice hockey." See ITT's Online Archives or 05/23/05 news, 05032320, for BP summary.)
New interpretation of HTS 9506 "equipment." As the holding in the Bauer decision is federal law, CBP states that it is necessary to conform the definition of equipment used by CBP to the definition set forth in the Bauer decision, i.e., "equipment" should now be interpreted to mean articles specially designed and intended for use only while participating in the activities set forth in HTS 9506.
(HTS 9506 covers 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.)
Sport-related articles as HTS 9506 "equipment". When applying the Bauer decision in classifying sports-related articles, CBP states that it is necessary to determine if the articles are "equipment" under HTS 9506. Articles that are specially designed and intended for use only while participating in the activities set forth in HTS 9506, constitute "equipment" under the heading.
Textile articles with thick non-textile guards/pads designed to be worn in sports as HTS 9506 "equipment". CBP notes that one class of merchandise that the Bauer decision particularly affects is textile articles designed to be worn while participating in sports that incorporate thick non-textile protective guards or pads.
When evaluating worn textile articles incorporating thick non-textile protective guards or pads, CBP states that it is necessary to determine if such articles are designed and intended for use only while participating in sports. CBP states that articles of this nature will be held to meet the HTS 9506 "equipment" criterion only if they 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 the articles impractical to use as everyday wearing apparel. Articles with only textile or insubstantial non-textile padding will generally not meet this criterion.
Examples of articles classified as "equipment" under HTS 9506. According to CBP, examples of merchandise that is classified as sports equipment in HTS 9506 are: fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, hockey shorts or pants with thick non-textile protective guards or pads, football shoulder pads, chest protectors used by lacrosse and field hockey goalkeepers, and protective cups.
Examples of articles classified as "sports clothing" in HTS Chapters 61 or 62. CBP states that examples of merchandise classified as sports clothing in HTS Chapters 61 or 62 are: padded shorts for bicycling, hockey shorts or pants with no guards or pads, soccer goalkeeper jerseys, spandex shorts or tights, wetsuits, motorcross jackets and pants with insignificant padding, and textile athletic supporters.
Classification May be Decided on a Case-by-Case Basis
CBP states that questions as to whether merchandise used in sports, particularly worn textile articles incorporating thick non-textile protective guards or pads, is classifiable as sports equipment under HTS 9506 will often require resolution on a case-by-case basis. CBP advises importers to use reasonable care in classifying their goods and encourages them to submit binding ruling requests to: U.S. Customs and Border Protection, Customs Information Exchange (Attn: Binding Rulings Section), One Penn Plaza, 10th Floor, New York, NY 10119.
Ports May Now Process Entries Where Liquidation Was Suspended
CBP also states that ports of entry that have suspended liquidation of entries based on the outcome of the court case may now process those entries as set forth above.
CBP memorandum (TBT-05-011, dated 05/13/05) available at http://www.cbp.gov/linkhandler/cgov/import/textiles_and_quotas/tbts/TBT2005/tbt_05_011.ctt/tbt_05_011.doc.