June 8, 2005
On May 13, 2005, U.S. Customs and Border Protection ("CBP") issued guidelines to its field offices on what type of sport equipment would be classifiable under Heading 9506, providing for "Articles and equipment for general physical exercise gymnastics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in [Chapter 95]; swimming pools and wading pools; parts and accessories thereof." CBP emphasized that resolution would be on a case-by-case basis, and that importers are encouraged to submit ruling requests to CBP.
We recommend that companies review their imported products to determine whether protests be filed against the assessment of duties on sports clothing assessed under chapter 62, pending resolution of these issues.
Prior Position of CBP
Prior to the decision of Bauer Nike Hockey U.S.A., Inc. v. United States, 393 F.3d 1246, it had been CBP's position that the term "equipment" in Heading 9506 included only articles that were 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.
CBP has modified its position based upon the Bauer Nike case, where the U.S. Court of Appeals for the Federal Circuit (CAFC), held that two styles of hockey pants, consisting of textile shells and interior assemblies of hard plastic guards and soft pads, were "equipment" under 9506, because they were "specially designed and intended for use only while playing ice hockey".
Current Position of CBP in Light of Bauer Nike
CBP indicated in these recently issued guidelines that in regard to Heading 9506, the term "equipment" should now be interpreted to "mean articles specially designed and intended for use only while participating in the activities set forth in the heading".
One problem area, noted in CBP's notice, concerns textile garments that incorporate non-textile protective guards or pads. Prior to Bauer Nike, CBP's position was that articles of this nature were generally not classifiable as sport equipment.
In its guidelines, CBP advises field offices to evaluate whether the articles are designed and intended for use only while participating in sports. Evidence of this is supported by the fact that the apparel incorporates thick, non-textile protective guards or pads, designed to absorb the impact of blows, collisions or flying objects. Generally, these guards will be removable or specially fitted. In addition, the inclusion of these features makes the articles impractical to use as everyday wearing apparel.
CBP indicates that examples of sport clothing that might be classified in Chapter 61 or 62 would be padded shorts for bicycling, hockey shorts or pants with no guards or pads, soccer goalkeeper jerseys, spandex shorts or tights, wetsuits, motocross jackets and pants with insignificant padding, and textile athletic supporters.
CBP notes that many questions will arise based upon the Bauer Nike decision, and encourages importers to file ruling requests to resolve these issues. If you have any questions concerning application of these guidelines, or the filing of protests contact Steve Spraitzar at (415) 288-0427 or firstname.lastname@example.org, or George Tuttle at (415) 288-0425 or email@example.com.
Stephen Spraitzar and George R. Tuttle are attorneys with the Law Offices of George R. Tuttle in San Francisco. The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.
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