November 23, 2005 CBP Bulletin Notices on a Certain Silk Capelet and Sports Equipment

With respect to the revocation and modification rulings, CBP states that the revocations and modification are effective for merchandise entered or withdrawn from warehouse for consumption on or after January 22, 2006.

With respect to the proposed revocation, CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed ruling, or any party involved with a substantially identical transaction, should advise CBP by December 23, 2005, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

CBP also states that these notices cover any rulings on the subject merchandise that may exist but have not been specifically identified.

Proposed Revocation of a Classification Ruling

Certain silk capelet. At issue is an item described as a woven 100% silk capelet (also identified as "Style No. G88OK505"). According to CBP, the sheer lightweight garment fits over the head through a center slit and has no collar or means of closure. The subject article covers the shoulders and upper portion of the wearer's arms but does not cover the elbows or reach the wearer's waist.

CBP is proposing to issue HQ 967889 in order to revoke NY L82042 and reclassify the subject capelet in HTS 6214.10.1000, which provides for "Shawls, scarves, mufflers, mantillas, veils and the like: Containing 70% or more by weight of silk or silk waste," rather than under HTS 6217.10.1090 (cat 759), which provides for "Other made up clothing accessories: Containing 70% or more by weight of silk or silk waste, other."

CBP states that it has, in multiple rulings (e.g. HQ 963859, HQ 964261, HQ 964319, HQ 364320, etc.), found that capelets possess the essential characteristics and purposes of shawls, articles that are classified in HTS 6214. CBP's findings were based on the fact that capelets and shawls are worn in the same manner, are of similar length, and offer similar elemental protection.

In addition, in each of the previous rulings, CBP has stated that the capelet at issue "is intended to be worn in much the same sense as a shawl in that it is to cover the shoulders and to be worn over other garments when the weather would not require a heavier coat or wrap."

According to CBP, the capelet at issue in proposed HQ 967889 is similar in essential characteristics and purposes of the previous CBP rulings. Therefore, CBP finds that the subject capelet is to be classified in HTS 6214.

proposed: HTS 6214.10.1000, 1.2%; current: 6217.10.1090 (cat 759), 2.3%.

Revocation and Modification of Six Classification Rulings

Certain Sports Equipment (hockey jocks, protective cups, shinguards, etc.). CBP is issuing six rulings in order to revoke or modify certain rulings concerning the listed sports equipment articles (see proposed rulings for further descriptions of the subject articles):

CBP is issuing the above-listed rulings in order to reclassify the subject articles in various provisions of HTS 9506 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 Chapter 95," rather than under various provisions of HTS Chapters 61 or 62 which provide for articles of apparel and clothing accessories.

In light of the Court of Appeals for the Federal Circuit (CAFC) decision in Bauer Nike Hockey USA, Inc. v. U.S., CBP finds that the subject articles are covered by HTS 9506 because they are specially designed and intended for use only while participating in sports (See ITT Online Archives or 5/20/05 news, 05052015, for BP summary of a CBP memorandum on the Bauer decision).

According to CBP, the subject articles incorporate a hard plastic protective cup or guard designed exclusively to protect the groin or shin against injury by absorbing blows, collisions, or flying objects. In addition, the features of the subject articles make them especially suited for sports and impractical to use as everyday wearing apparel. Therefore, CBP finds that the subject articles should be classified in HTS 9506.

(Since CBP's proposed modification and revocation notices were issued, the analyses of the proposed rulings have been expanded to provide greater guidance regarding the scope of merchandise provided for under HTS 9506. While the holding in each of these rulings remain unaltered from the proposed revocations and modification, CBP notes that several paragraphs have been added to the analysis to provide greater detail and clarity on the differences between the protective sports equipment classified in HTS 9506, and sports clothing classified in HTS Chapter 61 or 62.)

new: HTS 9506.99.2580, duty-free; 9506.99.6080, 4%; previous: 6114.30.3060 (cat 659), 14.9%; 6212.90.0030 (cat 659), 6.6%.

(See ITT's Online Archives or 07/26/05 news, 05072640, for BP summary of proposed revocations and modification on subject merchandise. See ITT's Online Archives or 10/21/05 news, 05102135, for BP summary of HQ 967738 which was originally proposed along with the above-listed rulings and concerned a soccer shinguard encased in a sock.)

November 23, 2005, 2005 CBP Bulletin (Vol. 39, No. 48) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2005/vol39_11232005_no48/