Riddell, Inc. v. United States , 906 F. Supp. 2d 1355 ( 2013 )

Slip Op. 13- 37
UNITED STATES COURT OF INTERNATIONAL TRADE
RIDDELL, INC.,
Plaintiff,
v. Before: Judith M. Barzilay, Senior Judge
UNITED STATES, Consol. Court No. 09-00416
Defendant.
OPINION
[On classification of certain football jerseys, pants, and girdle shells, summary judgment granted
for Defendant; summary judgment denied for Plaintiff.]
March 20, 2013
Daniel J. Gluck, Christopher M. Kane, Joel K. Simon, Scott Zarin, and Mariana del Rio
Kostenwein, Simon Gluck & Kane LLP, of New York for Plaintiff Riddell, Inc.
Marcella Powell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY for Defendant United States. With her on brief was
Alexander Vanderweide, Trial Attorney. Also with her on the brief were Stuart F. Delery,
Principal Deputy Assistant Attorney General, and Barbara S. Williams, Attorney in Charge. Of
counsel was Michael Heydrich, Office of Assistant Chief Counsel, International Trade
Litigation, U.S. Customs and Border Protection, of New York.
BARZILAY, Senior Judge: This consolidated case is before the court on cross-motions
for summary judgment. Plaintiff Riddell, Inc. (“Riddell”), challenges the decision of Defendant
U.S. Customs and Border Protection (“Customs”) denying Riddell’s protest of Custom’s
classification of its football pants, jerseys, and girdle shells within the Harmonized Tariff
Schedule of the United States (“HTSUS”). Customs classified the subject merchandise as
“articles of apparel” and rejected Riddell’s proposed classification of the merchandise as “sports
Consol. Court No. 09-00416 Page 2
equipment.” More specifically, Customs classified (1) the football pants in Court No. 07-00413
under subheading 6114.30.30 of the HTSUS, which carries a 14.9% ad valorem duty; the
football pants in Court No. 09-00416 under subheading 6203.43.40 of the HTSUS, which carries
a 27.9% ad valorem duty; (2) the football jerseys under subheading 6110.30.30 of the HTSUS,
which carries a 32% ad valorem duty; and (3) the football girdles under subheading 6207.19.90
of the HTSUS, which carries a 10.5% ad valorem duty. Plaintiff, however, claims that all the
merchandise is properly classified under subheading 9506.99.20 of the HTSUS, which is duty
free.1 The court has jurisdiction pursuant to 28 U.S.C. § 1581(a). For the reasons set forth
below, Defendant’s motion for summary judgment is granted and Plaintiff’s motion is denied.
I. STANDARD OF REVIEW
The court reviews Customs' protest decisions de novo. 28 U.S.C. § 2640(a)(1). USCIT
Rule 56 permits summary judgment when “there is no genuine dispute as to any material
fact . . . .” USCIT R. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In considering whether material facts are in dispute, the evidence must be considered in a light
most favorable to the non-moving party, drawing all reasonable inferences in its favor, as well as
all doubts over factual issues. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970); Anderson, 477 U.S. at 253-54.
A classification decision involves two steps. The first addresses the proper meaning of
the relevant tariff provisions, a question of law. See Faus Group, Inc. v. United States, 581 F.3d
1
Riddell abandoned its claims with respect to “scrimmage vests,” Pl. Br. 13, and “padded
football girdles.” See Notice of Withdrawal of Arguments and References to Padded Football
Girdles, ECF Docket Entry No. 52 (Sept. 14, 2012).
Consol. Court No. 09-00416 Page 3
1369, 1371-72 (Fed. Cir. 2009) (citing Orlando Food Corp. v. United States, 140 F.3d 1437,
1439 (Fed. Cir. 1998)). The second step determines the nature of the imported merchandise and
is a question of fact. See id. When there is no factual dispute regarding the merchandise, as is the
case here, the resolution of the classification issue turns on the first step, determining the proper
meaning and scope of the relevant tariff provisions. See Carl Zeiss, Inc. v. United States, 195
F.3d 1375, 1378 (Fed. Cir. 1999); Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365-66
(Fed. Cir. 1998).
While the court accords deference to Customs’ classification rulings relative to their
“power to persuade,” United States v. Mead Corp., 533 U.S. 218, 235 (2001) (citing Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)), the court has “an independent responsibility to decide
the legal issue of the proper meaning and scope of HTSUS terms.” Warner-Lambert Co. v.
United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005) (citing Rocknel Fastener, Inc. v. United
States, 267 F.3d 1354, 1358 (Fed. Cir. 2001)).
II. UNDISPUTED FACTS
The following facts are not in dispute. Riddell’s football pants are made of polyester
(and spandex) and include only youth (12 or 13 years old) sizes. They include game and practice
pants. They contain four interior sleeves specifically designed to hold in place two thigh pads
and two knee pads. The pants are also designed to hold in place (around a football player’s
waist) two hip pads and one tail pad. As imported, though, the pants do not contain pads or
padding. They have an open crotch (laced-closed with heavy strings), prominent inside stitching,
and fall just below the knee area. Tight elastic closures maintain a close fit under the knee. The
Consol. Court No. 09-00416 Page 4
pants are cut larger to accommodate the insertion of padding and other protective articles such as
an athletic cup.
Riddell’s football jerseys are made of knit mesh (100% polyester), with a V-shaped neck
opening, elasticized short sleeves and hemmed bottom. They include both youth and adult sizes.
The jerseys are constructed with extra room in the shoulders, chest, and back to accommodate
shoulder pads. The jerseys hold the shoulder pads snugly to the upper body. They also have
substantial stitching and extra material at the shoulders to maintain the integrity of each jersey
during full-contact organized football. As imported, the jerseys do not contain shoulder pads or
other padding.
Riddell’s football girdles (shells) are made of polyester and contain several internal pad
sleeves for insertion of hip and tail pads. The girdles fit snugly around the pelvic area and are
worn underneath football pants. As imported, the girdle shells do not contain padding.
III. DISCUSSION
The “General Rules of Interpretation (“GRIs”) govern classification of merchandise
under the HTSUS, and are applied in numerical order.” Honda of Am. Mfg. v. United States, 607
F.3d 771, 773 (Fed. Cir. 2010) (internal quotations and citations omitted). “What is clear from
the legislative history of the World Customs Organization (“WCO”) and case law is that GRI 1 is
paramount.” Telebrands Corp. v. United States, 36 CIT __, __, 865 F. Supp. 2d 1277, 1280
(2012). When determining the correct classification for merchandise, a court first construes the
language of the headings in question, in light of any related section or chapter notes. See GRI 1;
Faus Grp., Inc., 581 F.3d at 1372 (citing Orlando Food Corp., 140 F.3d at 1440). Similarly,
Consol. Court No. 09-00416 Page 5
GRI 6 states that “classification of goods in the subheadings of a heading shall be determined
according to the terms of those subheadings and any related notes and, mutatis mutandis, to the
above rules.” GRI 6. The “terms of the HTSUS are construed according to their common
commercial meanings.” Millenium Lumber Distrib. Ltd. v. United States, 558 F.3d 1326, 1329
(Fed. Cir. 2009). To ascertain the common commercial meaning of a tariff term, the court “may
rely on its own understanding of the term as well as lexicographic and scientific
authorities.” Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). The
court may also refer to the Harmonized Description and Coding System's Explanatory Notes
(“Explanatory Notes”) “accompanying a tariff subheading, which–although not controlling–
provide interpretive guidance.” E.T. Horn Co. v. United States, 367 F.3d 1326, 1329 (Fed. Cir.
2004) (citing Len-Ron, 334 F.3d at 1309).
The dispute in this case concerns whether Riddell’s football pants, jerseys, and girdle
shells are properly classified as “articles of apparel” under HTSUS Chapters 61 and 62 or “sports
equipment” under the HTSUS Chapter 95. The pertinent parts of Chapters 61, 62 and 95 of the
HTSUS provide:
6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or
crocheted:
6110.30 Of man-made fibers:
6110.30.30 Other ……………………..………… 32%
* * *
6114 Other garments, knitted or crocheted:
6114.30 Of man-made fibers:
6114.30.30 Other: ……………………………… 14.9%
* * *
Consol. Court No. 09-00416 Page 6
6212 Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and
parts thereof, whether or not knitted or crocheted:
6212.20.00 Girdles and panty-girdles ………………….. 20%
* * *
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:
9506.99 Other:
9506.99.20 Football, soccer and polo articles and equipment, except
balls, and parts and accessories thereof ................... Free
HTSUS subheadings 6110.30.30, 6114.30.30, 6212.20.00, 9506.99.20. The subheadings are eo
nomine provisions, or more simply, provisions “that describe[] an article by a specific name, not
by use.” Aromont USA, Inc. v. United States, 671 F.3d 1310, 1312 (Fed. Cir. 2012) (citing
CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1364 (Fed. Cir. 2011)); see also
HIM/Fathom, Inc. v. United States, 21 CIT 776, 783, 981 F. Supp. 610, 617 (1997) (“[T]he
garment provisions involved, Chapters 61 and 62, are not use provisions.”). Absent limiting
language or contrary legislative intent, an eo nomine provision covers all forms of the named
article. Nidec Corp. v. United States, 68 F.3d 1333, 1336 (Fed. Cir. 1995).
Plaintiff argues that the subject merchandise “must be classified under HTSUS 9506,
based upon . . . Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed Cir. 2004)
(“[Bauer]”), where hockey pants used in competitive sports with both removable and non-
removable belt and padding were classified by the Court as ‘sports equipment,’ classifiable under
9506.99.25, HTSUS and under Lemans Corp. v. United States, 660 F.3d 1311 (Fed. Cir. 2011)
(“Lemans”), which differentiated articles of general apparel from articles and equipment for
athletics or outdoor sports classified under 9506.99.25, holding that motorcycle jackets and pants
Consol. Court No. 09-00416 Page 7
were more like, and properly classifiable as, general apparel, and were therefore not prima facie
classifiable as sports equipment.” Pl. Br. 6. Plaintiff contends that its football pants, jerseys, and
girdle shells resemble the hockey pants at issue in Bauer rather than the motorcycle jackets and
pants at issue in Lemans, therefore justifying classification under HTSUS subheading 9506.99.20.
Pl. Br. 6. Plaintiff also contends that if the subject merchandise “are not themselves sports
equipment, then they must qualify as parts or accessories to sports equipment under Rollerblade,
Inc. v. United States, 282 F.3d 1349 (Fed. Cir. 2002),” also justifying classification under
HTSUS subheading 9506.99.20. Pl. Br. 6.
Customs, on the other hand, argues that the subject merchandise does not satisfy the
definition of “sports equipment” as set forth in Lemans. Def. Br. 8. Customs argues that Lemans,
alone, defines “sports equipment” for purposes of Heading 9506 and therefore rejects Bauer as a
source of definitional authority. Def. Br. 9. According to Customs, “Lemans made it clear that
[Heading 9506] only covers articles that are not apparel-like, protective in nature, and have
minimal textile components.” Def. Br. 10. Customs, in turn, argues that the subject merchandise
is properly classified as apparel because, as imported, “the pants, jerseys, and girdles are worn
over the body, do not have any protective pads, and are made up of 100% man-made textiles.”
Def. Br. 3-4. Customs also maintains that “Chapters 61 and 62 do not distinguish between
apparel designed for general or specific uses,” such as playing football. Def. Br. 11 (citing
Lemans, 660 F.3d at 1317). Accordingly, Customs claims that (1) the football pants are properly
Consol. Court No. 09-00416 Page 8
classified under HTSUS subheading 6114.30.302; (2) the football jerseys are properly classified
under HTSUS subheading 6110.30.30; and (3) the football girdle shells are properly classified
under HTSUS subheading 6212.20.00.3 Def. Br. 14-17.
The Notes to Chapters 61 and 62 provide that articles covered by Chapter 95, such as
football equipment, are not covered under Chapters 61 and 62. See Notes to Section XI Note 1(t)
(“This section does not cover: Articles of chapter 95 (for example, toys, games, sports requisites
and nets”). The Notes to Chapter 95 provide the same exclusionary note for articles of apparel.
See Notes to Chapter 95 Note 1(e) (“This chapter does not cover: Sports clothing or fancy dress,
of textiles, of chapter 61 or 62”). Therefore, if the imported pants, jerseys, and girdles are
classifiable as “sports equipment” under Chapter 95, they cannot be classified as “articles of
apparel” under Chapters 61 and 62 (and vice versa). Given that this case turns on the proper
interpretation and application of the term “sports equipment” under the HTSUS, the court will
begin by defining the applicable tariff terms and then consider whether the subject merchandise
is properly classifiable under Chapter 95.
A. Definition of Sports Equipment under HTSUS Chapter 95
Heading 9506 provides for “[a]rticles and equipment for . . . sports,” which is referred to
in this case as “sports equipment.” The HTSUS does not define the term “sports equipment.”
2
Although Customs classified some of the pants under subheading 6203.43.40 at liquidation,
Customs has determined that the more appropriate classification for all of the subject pants is
under subheading 6114.30.30. Def. Br. 14 n.4.
3
Although Customs classified the girdle shells under subheading 6207.19.90 at liquidation,
Customs has determined that the more appropriate classification for the subject girdles is under
subheading 6212.20.00. Def. Br. 16 n.5.
Consol. Court No. 09-00416 Page 9
The Federal Circuit’s definition is the only source of potentially binding authority on the scope
and meaning of “sports equipment” under Heading 9506. In Bauer, the Federal Circuit rejected
the Court of International Trade’s (“CIT”) definition of “sports equipment,” which defined the
term as “equipment essential to the play of the game, sport, or athletic activity.” Bauer, 393 F.3d
at 1250. More specifically, the Federal Circuit stated:
We disagree with the Court of International Trade's reading of the material
it reviewed to reach its conclusion. The Court of International Trade suggested
that we held in Rollerblade, Inc. v. United States, 282 F.3d 1349 (Fed. Cir. 2002),
that the term “equipment” meant only articles that are indispensable to the
relevant sport or athletic activity. Bauer, 305 F. Supp. 2d at 1356. Contrary to the
Court of International Trade's perception, we acknowledged only that the
“definition offered for ‘equipment’ includes those articles that are necessary and
specifically designed for use in athletics and other sports.” Rollerblade, 282 F.3d
at 1354. Because we did not use the word “only” immediately following “includes”
in Rollerblade, we gave no opinion whether items that are not necessary but are
specially designed for use in athletics or other sports constitute “equipment.” The
Court of International Trade also attempted to draw support from a Customs
ruling, which concluded that the term equipment “includes the requisites needed
in connection with the play of sports and athletics, that being the equipment
essential to the play of the game, sport, or athletic activity.” Bauer, 305 F.
Supp.2d at 1356 (emphasis added by the Court of International Trade) (citing N.Y.
D85049 (Dec. 14, 1998)). Again, the Court of International Trade read in the
word “only” immediately following the word “includes” when there appears to be
no basis for limiting sports “equipment” to only sports “requisites.” As for
dictionary definitions, the Court of International Trade quoted Webster's Third
New International Dictionary (“ Webster's ”), which defined “equipment” to mean
“the equipping of a person or thing” and “equip” as “to provide with what is
necessary, useful or appropriate.” Webster's 768 (1993). This definition provides
no support for the Court of International Trade's conclusion that an item must be
necessary to be equipment because the definition uses the disjunctive, “or,” in the
definition of “equip,” not the conjunctive, “and.” Because it is undisputed that
Bauer's pants were specially designed and intended for use only while playing ice
hockey, we hold, contrary to the Court of International Trade's conclusion, that
the pants are prima facie classifiable under subheading 9506.99.25 as ice-hockey
equipment.
Consol. Court No. 09-00416 Page 10
Id. at 1250-51. Accordingly, the Federal Circuit rejected a definition that limited “sports
equipment” to articles that are “necessary” to the sport or activity and adopted (although not
explicitly) a broader dictionary definition, which covers articles that are “necessary, useful or
appropriate” for that sport. Id. The Federal Circuit then explained that the subject merchandise
(hockey pants) were prima facie classifiable (under GRI 3) as hockey equipment because they
were “specially designed and intended for use only while playing ice hockey.” Id.at 1251; see
also Rollerblade, Inc., 282 F.3d at 1354 (“Rollerblade”) (“The definition offered for ‘equipment’
includes those articles that are necessary and specifically designed for use in athletics and other
sports.”); Am. Astral Corp. v. United States, 62 Cust. Ct. 563, 571(1969) (“American Astral”)
(“For the statutory designation of ‘equipment’ is satisfied once it is shown that the article is
specially designed for use in the game or sport.”).
In Lemans, however, the Federal Circuit clarified its definition of “sports equipment”
under Heading 9506. See Lemans, 660 F.3d at 1318-21. More specifically, the Federal Circuit
construed the term with the benefit of the Explanatory Notes:
In deciding that merchandise can be sports equipment as long as the goods are
“useful” or “appropriate” for a sport, we did not address the extent to which the
Explanatory Notes to Section 9506 clarified the meaning of the term “sports
equipment,” an issue we find persuasive in this case, as discussed below.
....
In this case, the Explanatory Notes to Section 9506 indicate that, to the
extent “sports equipment” encompasses articles worn by a user, those articles are
not apparel-like and are almost exclusively protective in nature. We agree with
the CIT’s conclusion that all of the listed examples in Subsection (B) “center on
non-clothing articles and do not describe apparel like the subject merchandise.”
CIT Decision, at 1383–84. Example 13, which is the example arguably the closest
to the subject merchandise, identifies “[p]rotective equipment for sports or games,
e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-
guards.” EN 95.06(B)(13). Even that example, however, refers exclusively to
Consol. Court No. 09-00416 Page 11
items such as masks, plates, pads, and guards, and it does not reference articles
that have more than minimal textile components.
....
Accordingly, we find that the CIT properly looked to the Explanatory
Notes to Section 9506 to assist with the interpretation of Heading 9506. The vast
majority of the examples in those notes are items that a user would not wear on
his or her body, but instead consist of articles that are entirely separate from the
user (e.g., tennis nets, children's playground equipment, archery targets, bobsleds),
held by the user in his or her hand (e.g., golf clubs, tennis rackets, polo mallets,
hockey sticks), or are accessories fastened to a user (e.g., snow skis, water skis,
ice skates). The few examples that a user actually would wear, which are
identified in Example (13), are almost exclusively used for protection and would
complement, or be worn in addition to, apparel worn for a particular sport. We
therefore agree with the CIT that the Explanatory Notes distinguish the subject
merchandise in this case from the goods properly classified under Heading 9506.
Considering the definition of “sports equipment” as informed and clarified by
these Explanatory Notes, the subject merchandise is not prima facie classifiable as
sports equipment under Chapter 95.
Id.at 1319, 1320, 1321-22. Therefore, the Federal Circuit determined that “sports equipment” is
defined as non-apparel-like merchandise that is necessary, useful or appropriate for a sport, and
if the merchandise is worn by a user, those articles are almost exclusively protective in nature
and would complement, or be worn in addition to, apparel worn for a particular sport. See id.4
1. Subheading 9506.99.20 (Football Equipment)
Subheading 9506.99.20 covers “Football . . . articles and equipment . . . , except balls
and parts and accessories thereof.” The definition of “sports equipment” under Heading 9506
can be applied to the provision for “football equipment” under subheading 9506.99.20.
4
To the extent Riddell views Bauer, Rollerblade, and Astral as arguing a “use” framework for
defining “sports equipment,” this court declines to endorse that interpretation of the tariff
provision. The definition of “sports equipment” set forth in Lemans, does not implicate use, but
instead defines the term according to the physical characteristics of sports equipment. See
Lemans, 660 F.3d at 1319-21.
Consol. Court No. 09-00416 Page 12
Accordingly, “football equipment” may be defined as non-apparel-like merchandise (except
balls) that is necessary, useful or appropriate for the sport of football and, if the merchandise is
worn by the user, the merchandise is protective in nature, and would complement, or be worn in
addition to, apparel worn while playing organized football.
The subheading also covers “parts and accessories thereof.” Note 3 to Chapter 95
provides that “parts and accessories which are suitable for use solely or principally with articles
of this chapter are to be classified with those articles.” HTSUS Chapter Notes to Chapter 95,
Note 3. Although the HTSUS does not define “parts” or “accessories,” the Federal Circuit
provided some explanation of the terms in Rollerblade, 282 F.3d at 1352. It defined an
“accessory” as an item that “must bear a direct relationship to the primary article that it
accessorizes” Id. According to the dictionary definition, an “accessory” is a “thing of secondary
or subordinate importance (as in achieving a purpose or an effect) . . . . an object or device that is
not essential in itself but that adds to the beauty, convenience, or effectiveness of something
else . . . . any of various articles of apparel (as a scarf, belt, or piece of jewelry) that accent or
otherwise complete one’s costume.” Webster’s Third International Dictionary at 11 (1993).
The Federal Circuit defined a “part” as an “essential element or constituent; integral
portion which can be separated, replaced, etc.” Rollerblade, 282 F.3d at 1352 (quoting Webster’s
New World Dictionary 984 (3d College Ed. 1988)). It concluded that “the term ‘part,’ like the
term ‘accessory,’ must have a direct relationship to the primary article, rather than to the general
activity in which the primary article is used.” Id. In a different case, the Federal Circuit stated
that “[f]or tariff classification purposes, the mere fact that a plurality of articles may be used
Consol. Court No. 09-00416 Page 13
together does not necessarily make each article in the plurality a constituent ‘part’ of a single
article. . . . Rather, 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.’” ABB, Inc. v. United States, 421 F.3d
1274, 1277 (Fed. Cir. 2005) (internal quotations omitted) (citing United States v. Willoughby
Camera Stores, Inc., 21 CCPA 322, 324 (1933)).
B. Definition of Apparel Under HTSUS Chapters 61 and 62
Chapters 61 and 62 generally cover “Articles of apparel and clothing and accessories.”5
The Chapter Notes do not define the term “apparel.” The Federal Circuit, however, has defined
“wearing apparel” under Chapters 61 and 62 as “embracing all articles which are ordinarily
worn—dress in general.” Rubie’s Costume Company v. United States, 337 F.3d 1350, 1357 (Fed.
Cir. 2003) (quoting Arnold v. United States, 147 U.S. 494, 496 (1893)). It “refers to clothes or
coverings for the human body worn for decency or comfort and common knowledge indicates
that adornment is also an element of many articles of wearing apparel.” Id. (quoting Antonio
Pompeo v. United States, 40 Cust. Ct. 362 (1958)). Within the general category of “apparel,”
Customs contends that the subject merchandise is properly classified under the following three
subheadings.
5
More specifically, Chapter 61 covers “Articles of apparel and clothing accessories, knitted or
crocheted” and Chapter 62 covers “Articles of apparel and clothing accessories, not knitted or
crocheted.” HTSUS Chapters 61, 62.
Consol. Court No. 09-00416 Page 14
1. Subheading 6114.30.30 (for Riddell’s Pants)
Subheading 6114.30.30 covers “Other garments, knitted or crocheted: of man-made
fibers: other, other: men’s or boys.” The term “garments” is not defined by the HTSUS.
Turning to lexicographic sources, a “garment” is defined as “an article of outer clothing (as a
coat or dress) usu[ally] exclusive of accessories.” Webster’s Third New International Dictionary
936 (1993). The Explanatory Notes are more specific and state that the subheading includes
“[s]pecial articles of apparel, whether or not incorporating incidentally protective components
such as pads or padding in the elbow, knee or groin areas, used for certain sports or for dancing
or gymnastics (e.g., fencing clothing, jockeys' silks, ballet skirts, leotards).” Explanatory Notes
to Heading 61.14 (2012). In HQ Ruling 968013, a decision the court finds persuasive, Customs
interpreted the term “certain” as limiting the scope of the subheading “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.” HQ Ruling 968013 (Mar. 3, 2006).
Although the subheading does not reference pants specifically, Customs has interpreted the term
“special articles of apparel” to include pants worn while playing organized football. See id.(classifying football pants under subheading 6114.30.30); see also HQ Ruling 967957 (Dec. 9,
2005) (classifying soccer goalkeeper pants under subheading 6114.30.30).
2. Subheading 6110.30.30 (for Riddell’s Jerseys)
Subheading 6110.30.30 covers “Sweaters, pullovers, sweatshirts, waistcoats (vests) and
similar articles, knitted or crocheted: of man-made fibers: other.” The HTSUS does not define
the general scope of Heading 6110 but the Explanatory Notes state that the heading covers “a
Consol. Court No. 09-00416 Page 15
category of knitted or crocheted articles . . . designed to cover the upper parts of the body
(jerseys, pullovers, cardigans, waistcoats and similar articles). Articles incorporating
incidentally protective components such as elbow pads sewn on sleeves and used for certain
sports (e.g., soccer goalkeeper jerseys) remain classified in this heading.” Explanatory Notes to
Heading 61.10 (2012). Therefore, Heading 6110 covers articles referred to as “jerseys.” See
Lemans, 34 CIT __, __, 675 F. Supp. 2d 1374, 1380-81 (2010). Jerseys, in turn, are defined as
“any of various close-fitting usually circular-knitted garments: . . . as a pullover with short or
long sleeves worn especially by children, athletes, or sailors.” Webster’s Third New International
Dictionary at 1214 (1993).
3. Subheading 6212.20.00 (for Riddell’s Girdles)
Subheading 6212.20.00 covers “Brassieres, girdles, corsets, braces, suspenders, garters
and similar articles and parts thereof, whether or not knitted or crocheted: Girdles and panty-
girdles.” The term “girdles” is also not defined by the HTSUS. The Explanatory Notes provide
that “[t]his heading covers articles of a kind designed for wear as body-supporting garments or as
supports for certain other articles of apparel, and parts thereof. Explanatory Notes to Heading
62.12 (2012). These articles may be made of any textile material including knitted or crocheted
fabrics (whether or not elastic). . . This heading includes, . . . . Girdles and panty-girdles. . . . All
of the above articles may be furnished with trimmings of various kinds (ribbons, lace, etc.), and
may incorporate fittings and accessories of non-textile materials (e.g., metal, rubber, plastics or
leather).” Explanatory Notes 62.12 (2012). In HQ Ruling 957469, another decision the court
finds persuasive, Customs defined the term “girdle” under Heading 6212:
Consol. Court No. 09-00416 Page 16
While you are correct that the two cited definitions refer to girdles as women’s
undergarments, Customs must point out the following definitions from other
sources:
1. Flexible, light-weight shaped corset, made partly or entirely of elastic.
Worn to confine figure, especially through hip line. From The Fashion Dictionary,
by Mary Brooks Picken (1973), at page 163.
2. An elasticized flexible undergarment worn over the hips and waist.
From Webster's II New Riverside University Dictionary, (1984), at page 531.
Neither of these definitions identify girdles as gender specific. All of the
definitions, however, indicate that girdles are undergarments. Customs believes
that currently girdles are commonly understood to be undergarments which
provide support and hold in the body along the lower torso, specifically including
the waist and hips.
HQ Ruling 957469 (Nov. 7, 1995). Customs has determined, and the court agrees, that “girdles”
are not gender specific. See id. (“Nowhere in heading 6212 or its subheadings do we find
divisions based upon gender.”). Therefore, a “girdle” may be defined as an undergarment that
provides support and holds in the body along the lower torso, specifically including the waist and
hips.
C. Classification of the Subject Merchandise
Although the subject merchandise is designed for playing organized football and might
naturally be associated with sports equipment, under the framework set forth in Lemans this is
not the case. Under the Lemans framework, the subject merchandise does not satisfy the
definition of “football equipment” under subheading 9506.99.20. That subheading is limited to
non-apparel-like merchandise and, to the extent the merchandise is worn by the user, those
articles are almost exclusively protective in nature, and would complement, or be worn in
addition to, apparel worn while playing organized football. The Explanatory Notes list (among
Consol. Court No. 09-00416 Page 17
other things) “fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards,
ice-hockey pants with built-in guards and pads” as examples of protective sports equipment.
Explanatory Notes to Heading 95.06(B)(13) (2012). These listed items are ordinarily worn on
the body for protection. See Lemans, 660 F.3d at 1320. Articles worn on the body and
classifiable as “football equipment” would likely include the thigh, knee, hip, and tail pads that
are inserted into Riddell’s pants and girdles. See HQ Ruling 968013 (“[T]he 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 . . . .”). It would also likely
include shoulder pads that are worn underneath Riddell’s jerseys.
Riddell’s pants, jerseys and girdles, however, do not come bundled with or otherwise
incorporate any form of padding or protective inserts. Cf. Bauer, 393 F.3d at 1248 (“The internal
guards, pads, and belt collectively comprise about 80% of the total weight of the hockey pants.”).
They are composed of textile materials and therefore do not offer much protection without the
pads. See Lemans, 660 F.3d at 1317 (“[T]he merchandise in this case does not contain protective
or specialized features to the same degree as the ‘crash helmets’ used by motorcycle and auto
racers . . . .”). The pads are separate articles entirely. Even though Riddell’s pants, jerseys, and
girdles are specifically designed to accommodate various forms of protective padding for playing
organized football, this design feature does not change their identity under the HTSUS from
“articles of apparel” to “sports equipment.” In Lemans, the Federal Circuit explained that “the
headings and subheadings of Chapters 61 and 62 do not distinguish between apparel designed for
general or specific uses. The fact that articles are specialized or intended for specific purposes,
Consol. Court No. 09-00416 Page 18
such as for sports, does not alone remove them from the category of apparel.” Lemans, 660 F.3d
at 1317 (emphasis added).
Moreover, Riddell’s arguments for classifying the subject merchandise under subheading
9506.99.20 are predicated on its own alternative definition of the term “sports equipment.” For
example, Riddell states that “our reading of [Lemans] is that the CAFC did not specifically find
that where the article is required or ‘indispensable’ to play a particular sport that such further
inquiry would be necessary. That is, if the article is required and indispensable to playing the
particular sport, as opposed to simply be designed for exclusive use in the sport, consistent with
the earlier decision in Bauer Nike, the article would be prima facie classifiable as sports
equipment and a GRI 3(a) comparison with the provision for apparel would be called for.” Pl. Br.
19. Riddell, in turn, cites the National Federation of High School Associations Football Rules
Book (“NFHS Rules Book”) to support its argument that the subject pants, jerseys, and girdle
shells, are “mandatory” football equipment (i.e., items required by the rules to play football). Pl.
Br. 20. According to Riddell, items required to play a particular sport are prima facie classifiable
as “sports equipment” under Bauer. This argument misconstrues the definition of “sports
equipment.”
Whether an article is “required” to play a given sport does not, by itself, make the article
classifiable as “sports equipment” under Heading 9506. There are other characteristics of the
merchandise that must be considered to determine whether classification under Heading 9506 is
appropriate. The Federal Circuit explained this in Lemans, which clarified the definition of
“sports equipment” as set forth in Bauer. For articles worn by the user (like football pants,
Consol. Court No. 09-00416 Page 19
jerseys, and girdles) to be classifiable as “sports equipment” under Heading 9506, they must be
protective in nature. See Lemans, 660 F.3d at 1318-21. The merchandise in Bauer and Lemans
illustrates the difference. In Bauer, the hockey pants contained significant padding (80% of the
total weight) with an outer textile shell. See Bauer, 393 F.3d at 1248. They were ultimately
classified as “ice-hockey equipment” rather than “garments” under GRI 3(a). See id at 1252-53.
In Lemans, though, the motorcycle jerseys, pants, and jackets contained some padding (less than
50% of the total weight) but those articles did not have the “protective or specialized features”
that justify classification as “sports equipment” under Heading 9506. Lemans, 660 F.3d at 1317;
see id. at 1319 (“The ice-hockey pants at issue in Bauer, moreover, are distinguishable from the
subject merchandise. The ice-hockey pants were constructed of a nylon or polyester textile
‘shell’ and had an internal assembly of hard plastic guards and foam padding. Accordingly, they
were much more like the examples of pads and guards listed in EN 95.06(B)(13), the subsection
of the Explanatory Notes that the CIT distinguished from the subject merchandise in this case.”)
(internal citation omitted). The Lemans merchandise was classified as “apparel” under GRI 1.
Id.at 1317. Riddell’s merchandise, by contrast, contains no protective padding and therefore
lacks the protective features that might justify classification as “football equipment” under
subheading 9506.99.20.6
6
Riddell makes a separate argument that the subject merchandise is prima facie classifiable
under subheading 9506.99.20 based on a principal use analysis. For example, Riddell applies the
Carborundum factors to demonstrate that the subject merchandise is used to play organized
football and therefore classifiable as “football equipment” under subheading 9506.99.20. Pl. Br.
24-26 (citing United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976)).
Consol. Court No. 09-00416 Page 20
Riddell also argues that its jerseys, pants, and girdles are “parts and accessories” of
football equipment and therefore properly classified under subheading 9506.99.20. Pl. Br. 26.
This argument is also unpersuasive. It changes the analysis and assumes that the protective pads
are “football equipment” and Riddell’s jerseys, pants, and girdles are “parts and accessories
thereof.” Generally speaking, “parts and accessories” “must have a direct relationship to the
primary article, rather than to the general activity in which the primary article is used.”
Rollerblade, 282 F.3d at 1353. Here, the subject merchandise is specifically designed to
accommodate football pads, which demonstrates that the two types of merchandise are designed
to be used together. This, however, is not the type of relationship that would lead the court to
classify the subject merchandise as “parts and accessories” of football pads.
A “part” is defined as an “essential element or constituent; integral portion which can be
separated, replaced, etc. Id. Moreover, 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. . . . Rather, where an article performs its separate function without loss of any of its
As Customs notes in its reply brief, none of the tariff provisions under review are
governed by use. Def. Reply Br. 3, 7-8. They are eo nomine provisions. A use analysis is not
appropriate for these eo nomine tariff provisions. See Carl Zeiss, 195 F.3d at 1379 (“[A] use
limitation should not be read into an eo nomine provision unless the name itself inherently
suggests a type of use.”). Indeed, the Federal Circuit did not undertake a principal use analysis
in Lemans, the most recent and authoritative case on the scope and meaning of “sports
equipment” under the HTSUS. Accordingly, the court will not read use into the eo nomine tariff
provision for “sports equipment.” Riddell’s application of the Carborundum factors is therefore
misplaced. See BenQ Am. Corp. v. United States, 646 F.3d 1371, 1377 (Fed. Cir. 2011)
(“[T]hose factors are typically used to establish whether merchandise falls within a particular
class or kind for purposes of a principal use analysis.”). Some of Riddell’s arguments implicate
GRI 3 but classification under GRI 3 is unnecessary in this case because the subject merchandise
can be properly classified under GRI 1. See Telebrands Corp., 865 F. Supp. 2d at 1280.
Consol. Court No. 09-00416 Page 21
essential characteristics, and, whether separate or joined, is complete in itself, that article is a
distinct and separate commercial entity and not ‘a part.’” ABB, Inc., 421 F.3d at 1277 (internal
quotations and citations omitted). In this case, the pants, jerseys, and girdles are not constituent
parts or essential elements of football pads. Each of the subject articles is a stand-alone product
capable of functioning independently, i.e., the pants, jerseys, and girdles can be worn without the
pads. Although the two types of merchandise—the pants, jerseys, girdles and football pads—are
designed to be used together, that does not transform the subject merchandise into unassembled
“parts” of football pads. Riddell’s pants, jerseys, and girdles are “distinct and separate”
commercial entities. See id.Alternatively, an “accessory” is defined as thing of secondary or subordinate importance
(as in achieving a purpose or an effect) . . . . an object or device that is not essential in itself but
that adds to the beauty, convenience, or effectiveness of something else . . . . any of various
articles of apparel (as a scarf, belt, or piece of jewelry) that access or otherwise complete one’s
costume.” Webster’s Third International Dictionary at 11 (1993). Classification of the subject
merchandise as “accessories” is also inappropriate. The subject merchandise is designed to
cover the body and provide comfort and support just like other articles of apparel that are
specially designed for sports. The pads add protection. Each serves a separate function and
neither is secondary or subordinate to the other. Accordingly, Riddell’s merchandise is not
properly classifiable as “parts and accessories.”
Riddell’s pants, jerseys, and girdle shells are properly classified as “articles of apparel”
under Chapters 61 and 62. There is no dispute that the subject merchandise is worn on the body
Consol. Court No. 09-00416 Page 22
and composed entirely of textile material. Riddell’s merchandise, therefore, can best be
described as apparel-like articles specially designed for playing organized football. Specifically,
Riddell’s jerseys are short-sleeved pullovers made of knit mesh (100% polyester), which satisfies
the definition of jerseys as “usually circular-knitted garments . . . a pullover with short or long
sleeves worn especially by . . . ., athletes.” Webster’s Third New International Dictionary at 1214
(1993). Riddell’s jerseys are therefore classifiable under subheading 6110.30.30. Riddell’s
pants are also made of polyester, worn on the lower body, and fall just below the knee area with
tight elastic closures to maintain a close fit. They constitute “special articles of apparel” worn
while playing football and therefore classifiable under subheading 6114.30.30. See HQ Ruling
968013 (recognizing football pants to be special articles of apparel for playing football and
therefore classifiable under subheading 6114.30.30); see also Explanatory Notes to Heading
61.14. Likewise, Riddell’s girdle shells are made of polyester and worn around the pelvic area
underneath football pants. They satisfy the definition of girdles, which are defined as
undergarments that provide support and hold in the body along the lower torso, specifically
including the waist and hips. As noted by Customs, classification of the subject girdle shells is
more appropriate under subheading 6212.20.00 (girdles) rather than under subheading
6207.19.90, which covers “underpants and briefs.” See HTUS subheading 6207.19.90. Riddell’s
girdle shells have the characteristics of an athletic girdle, not underwear, and are therefore
classifiable under subheading 6212.20.00.
It is only after the pads are inserted into the pants and girdles (or under the jerseys) that
the subject merchandise could be said to offer any real protection. This, though, has no bearing
Consol. Court No. 09-00416 Page 23
on proper classification given that merchandise is classifiable in its condition as imported (i.e.,
without pads). See, e.g., Simod Am. Corp. v. United States, 872 F.2d 1572, 1577 (Fed. Cir. 1989)
(“It is a principle of Customs law that imported merchandise is dutiable in its condition as
imported . . .”) (citing United States v. Citroen, 223 U.S. 407 (1912)).
IV. CONCLUSION
For the foregoing reasons, summary judgment is granted in favor of Defendant.
Judgment will be entered accordingly.
Dated: March 20, 2013 /s/ Judith M. Barzilay
New York, NY Judith M. Barzilay, Senior Judge