United States Court of Appeals
for the Federal Circuit
__________________________
LEMANS CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-1295
__________________________
Appeal from the United States Court of International
Trade in case no.06-CV-0038, Judge Judith M. Barzilay.
_________________________
Decided: October 3, 2011
_________________________
JESSICA R. RIFKIN, Rodriguez O’Donnell Gonzalez &
Williams, P.C., of Chicago, Illinois, argued for plaintiff-
appellant. With her on the brief were THOMAS J.
O’DONNELL and RODRIGUEZ O’DONNELL.
ALEXANDER VANDERWEIDE, Trial Attorney, Interna-
tional Trade Field Office, Civil Division, United States
Department of Justice, of New York, New York, argued
for defendant-appellee. With him on the brief were
BARBARA S. WILLIAMS, Attorney in Charge; and TONY
WEST, Assistant Attorney General, and JEANNE E.
DAVIDSON, Director, Civil Division, Commercial Litigation
LEMANS CORP v. US 2
Branch, United States Department of Justice, of Wash-
ington, DC. Of counsel on the brief was MICHAEL W.
HEYDRICH, Office of Assistant Chief Counsel, Interna-
tional Trade Litigation, United States Customs and
Border Protection, New York, New York.
__________________________
Before GAJARSA, * MAYER, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
This is a trade case in which we are required to assess
the propriety of merchandise classifications employed by
United States Customs and Border Protection (“Cus-
toms”) when setting duty rates on certain products im-
ported into the United States by LeMans Corporation
(“LeMans”). LeMans appeals the decision of the Court of
International Trade (“CIT”) upholding Customs’ classifi-
cation of LeMans’s motocross jerseys, motocross pants,
and motorcycle jackets (collectively, the “subject mer-
chandise”) as apparel under Chapters 61 and 62 of the
Harmonized Tariff Schedule of the United States
(“HTSUS”). LeMans contends that the subject merchan-
dise should be classified as sports equipment under
Chapter 95 of the HTSUS because the articles are neces-
sary, useful, or appropriate for a sport and are specifically
designed for use in a particular sport. Because we find
that Customs correctly classified the subject merchandise
as apparel and, thus, properly set duty rates for these
LeMans imports, we affirm.
* Judge Gajarsa assumed senior status on July 31,
2011.
3 LEMANS CORP v. US
BACKGROUND
A. The Subject Merchandise
LeMans imported the subject merchandise into the
United States through the ports of Chicago and Los
Angeles between July 20, 2004 and September 17, 2004.
The merchandise consists of: (1) five different models of
motocross jerseys; (2) six different models of motocross
pants; and (3) four different models of motorcycle jackets.
The differences in the specific models are neither signifi-
cant nor relevant for this analysis, and we treat the
merchandise in three broad categories: motocross jerseys,
motocross pants, and motorcycle jackets. Below are the
relevant features of each of the categories of articles as
found by the CIT and according to the record, which are
not in dispute: 1
1. Motocross Jerseys
LeMans’s motocross jerseys are made of “[s]ynthetic,
abrasion-resistant mesh and ventilated knit patterned
fabric, which also wicks away moisture.” LeMans Corp. v.
United States, 675 F. Supp. 2d 1374, 1376-77 (Ct. Int’l
Trade 2010) (“CIT Decision”). They have “padded elbows
for abrasion and impact protection and form an integrated
protection system with the use of a tacky silicon print on
the lower back to keep the jersey tucked into the moto-
cross pant when riding.” Id. at 1377 (internal quotations
and citation omitted). The record shows that the weight
of the pads constitutes approximately ten percent of the
entire weight of the jersey.
1 At LeMans’s suggestion, this court obtained and
examined physical samples of the products LeMans
submitted to the CIT in connection with its summary
judgment motion.
LEMANS CORP v. US 4
2. Motocross Pants
LeMans’s motocross pants are made of
[h]eavy-duty nylon [that] provides riders with im-
pact and abrasion protection, and the pants con-
tain additional comfort features, such as mesh
panels for venting, heat resistant inner leg areas
(made of leather or man-made fibers) to prevent
burns from the engine and exhaust pipe, and
spandex and stretch panels to allow freedom of
movement and a non-binding fit in the legs, seat,
and crotch area.
Id. at 1377 (internal quotations and citations omitted).
The pants contain foam padding sewn into the knee and
thigh areas as well as removable foam padding. The
weight of the pads is just less than fifty percent of the
total weight of the pants.
3. Motorcycle Jackets
The jackets are made of “[h]eavy-duty materials,”
such as heavyweight waxed cotton chassis, Dynax Nylon
chassis, or knitted polyester mesh chassis, and contain
molded rubber padding inserted into the elbows and
shoulders as well as back pads. Id. at 1377-78 n.6. They
are intended to provide protection to riders on public
streets from impact and abrasion injuries that may occur
in an accident during street motorcycle riding. Id. The
protectors in the jackets comprise roughly twenty to
twenty-five percent of the weight of the jackets.
B. Customs’ Classification
Customs classified all of the subject merchandise as
wearing apparel under either Chapter 61 or 62 of the
5 LEMANS CORP v. US
HTSUS. 2 Specifically, Customs classified the motocross
jerseys as “Sweaters, pullovers, sweatshirts, waistcoats
(vests) and similar articles, knitted or crocheted: Of man-
made fibers: Other” under subheading 6110.30.30 of the
HTSUS at a duty rate of 32% ad valorem. It classified the
pants as “Garments, made up of fabrics of heading 5602,
5603, 5903, 5906 or 5907: Other men’s or boys’ garments:
Of man-made fibers: Other” under subheading 6210.40.50
of the HTSUS at a duty rate of 7.1% ad valorem. And it
classified the different models of motorcycle jackets in
three separate provisions of Heading 6201 of the HTSUS:
the Airtex Sport and Merc models under subheading
6201.93.30 (7.1% ad valorem); the Tarmac jacket under
6201.93.35 (27.7% ad valorem); and the Super Duty model
under 6201.92.15 (6.2% ad valorem).
LeMans filed timely protests, claiming that its mer-
chandise is properly classifiable under Chapter 95 of the
HTSUS, either under subheading 9506.91.0030 at a duty
rate of 4.6% ad valorem, or under subheading
9506.99.6080 at a duty rate of 4% ad valorem. Customs
denied the protests.
C. Court of International Trade Decision
LeMans initiated a civil action in the CIT contesting
the denial of its protest under 19 U.S.C. § 1515. Follow-
ing cross-motions for summary judgment, the CIT issued
a decision affirming Customs’ classification as to all
goods. It did so under General Rule of Interpretation
(“GRI”) 1, which requires review of the headings and
relevant section and chapter notes of the HTSUS. CIT
Decision, at 1385.
2 All citations to the HTSUS refer to the 2004 ver-
sion, as determined by the date of importation of the
merchandise.
LEMANS CORP v. US 6
As for the jerseys, the CIT looked to the common dic-
tionary definition of “sweater” and “pullover” and the
Headings of 6110 to determine that the jerseys fit within
the definition of those terms. Id. at 1380-81. It also
reviewed the Explanatory Notes to Heading 6110 (“EN
61.10”), which add that the heading encompasses “a
category of knitted or crocheted articles . . . designed to
cover the upper parts of the body,” specifically including
“jerseys” as an example. Id. at 1381 (quoting EN 61.10).
As for the pants, the CIT again looked to the common
dictionary definition of “garment” to find that LeMans’s
motocross pants constitute an article of clothing that
covers the human body, and that the pants are made up of
materials under headings 5903 and 5906 (heavy duty
nylon mesh, heavy duty ballistic woven nylon fabric,
heavy duty woven polyester, and Keprotec®). Id. at 1381-
82. Finally, the court affirmed Customs’ classification of
LeMans’s motorcycle jackets as “overcoats,” finding that
they fit within that general category and distinguishing
them from “men’s or boys’ suits” under Heading 6203. Id.
at 1382.
The CIT also rejected LeMans’s argument that its
goods are prima facie classifiable as sports equipment
under Heading 9506, which would require consideration
of GRI 3(a) to determine which heading more specifically
describes the merchandise. The court looked to the dic-
tionary definition of “equipment” and our decision in
Rollerblade, Inc. v. United States, 282 F.3d 1349, 1354
(Fed. Cir. 2002), in which we stated that “‘equipment’
includes those articles that are necessary and specifically
designed for use in athletics and other sports.” Id. at
1354. Based on these authorities and its review of the
subject merchandise, the court found that, although
LeMans’s goods “arguably constitute[] useful, if not neces-
sary, articles to motocross and motorcycle riding,” the
7 LEMANS CORP v. US
Explanatory Notes to Heading 9506 (“EN 95.06”) demon-
strate that the subject merchandise is not of the type
typically classified as sports equipment. CIT Decision, at
1383-84. Those notes include, as examples of “requisites
for other sports,” items such as snow skis, golf clubs, ping-
pong paddles, tennis rackets, basketballs, ice skates,
hockey sticks, swings, and slides. See CIT Decision, at
1383 n.15 (citing EN 95.06(B)). Although example (B)(13)
of the Explanatory Notes identifies “[p]rotective equip-
ment for sports or games, e.g., fencing masks and breast
plates, elbow and knee pads, cricket pads, shin-guards,”
the court found that these examples “center on non-
clothing articles and do not describe apparel like the
subject merchandise.” Id. at 1383-84.
The court further found that Note 1(e) to Chapter 95,
which excludes “sports clothing . . . of textiles, of chapter
61 or 62” from Chapter 95, also supported its conclusion.
Id. at 1384. Finally, the CIT distinguished our decision in
Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d
1246 (Fed. Cir. 2004), a case in which we found that ice-
hockey pants were classifiable as sports equipment, on
grounds that Bauer did not provide a broadly applicable
definition of “equipment” and involved a GRI 3(a) analy-
sis, not a GRI 1 finding. CIT Decision, at 1384-85.
LeMans filed a timely notice of appeal. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(5).
STANDARD OF REVIEW
We review the CIT’s grant of summary judgment on
tariff classifications de novo. Cummins Inc. v. United
States, 454 F.3d 1361, 1363 (Fed. Cir. 2006). We employ
the same standard employed by the CIT in assessing
Customs’ classification determinations. A classification
decision involves two steps. The first concerns the proper
meaning of the tariff provisions, which is a question of
LEMANS CORP v. US 8
law reviewed de novo. Id. The second step concerns
whether merchandise falls within a particular heading,
which is a question of fact we review only for clear error.
Id. Where, as here, the nature of the merchandise is
undisputed, the inquiry collapses into a question of law
we review de novo. Id.
DISCUSSION
As noted above, LeMans urges us to reject Customs’
classification of the subject merchandise as wearing
apparel. Instead, it asks that we conclude that the mer-
chandise is properly classified as sports equipment under
Chapter 95. LeMans contends that, because its goods are
so highly specialized for use during motocross or motorcy-
cle riding, the wearing apparel aspects of the merchandise
are only incidental to its primary purpose, placing these
items outside of the classification as apparel. LeMans
asserts, moreover, that there can be no fair debate that
the merchandise is both specially designed for and appro-
priate and useful for a sport, thus rendering it properly
classifiable as sports equipment. LeMans argues that,
under these facts, our precedent commands reversal of the
CIT decision. As explained below, we find that the subject
merchandise is properly classified as wearing apparel
under Chapters 61 and 62 and is not prima facie classifi-
able as sports equipment under Chapter 95, and we find
LeMans’ characterization of our precedent overly broad.
Accordingly, we conclude that Customs’ classification of
the subject is not erroneous. 3
3 Because we decide that the subject merchandise is
not prima facie classifiable as sports equipment under the
proper interpretation of that term, we do not address the
government’s argument that motorcycle jackets are not
classifiable as sports equipment for the independent
9 LEMANS CORP v. US
The proper classification of merchandise is governed
generally by the GRIs of the HTSUS. Bauer, 393 F.3d at
1250. GRI 1 requires classification “according to the
terms of the headings and any relative section or chapter
notes.” GRI 1. If GRI 1 resolves the issue, the court is not
to look to other GRIs. See Mita Copystar Am. v. United
States, 160 F.3d 710, 712 (Fed. Cir. 1998). We are first to
look to headings, then subheadings, to determine the
proper classification. Bauer, 393 F.3d at 1250. “Absent
contrary definitions in the HTSUS or legislative history,
we construe the terms used in the headings and subhead-
ings according to their ‘common and popular meaning,’
which may be drawn from our ‘own understanding, dic-
tionaries and other reliable sources.’” Id. (quoting Med-
line Indus., Inc. v. United States, 62 F.3d 1407, 1409 (Fed.
Cir. 1995)). The World Customs Organization’s Explana-
tory Notes that accompany each Chapter of the HTSUS,
while not legally binding, are “persuasive” and are “gen-
erally indicative” of the proper interpretation of the tariff
provision. Drygel, Inc. v. United States, 541 F.3d 1129,
1134 (Fed. Cir. 2008).
When merchandise is prima facie classifiable under
two or more headings or subheadings of the HTSUS, we
apply GRI 3 to resolve the classification. Bauer, 393 F.3d
at 1251. GRI 3(a) states that “[t]he heading which pro-
vides the most specific description shall be preferred to
headings providing a more general description.” GRI 3(a).
“Under this so-called rule of relative specificity, we look to
the provision with requirements that are more difficult to
satisfy and that describe the article with the greatest
degree of accuracy and certainty.” Orlando Food Corp. v.
United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998).
reason that street motorcycle riding, as distinct from
motorcycle racing, is not a “sport.”
LEMANS CORP v. US 10
A. Apparel Under Chapters 61 and 62
We first consider whether Customs correctly classified
the subject merchandise as various types of apparel under
subheadings of Chapters 61 and 62 of the HTSUS. On
this point, LeMans does not challenge the definitions the
CIT applied to the relevant terms (i.e., “sweater,” “pull-
over,” “garment,” and “overcoat”), nor does it challenge
whether the subject merchandise falls within the ordinary
meaning of those terms generally. Rather, LeMans
asserts that the CIT incorrectly concluded that the arti-
cles at issue constitute “wearing apparel” because its
merchandise is so highly specialized that any apparel-like
features are incidental to the subject merchandise’s
primary purpose as sports equipment.
In support of its argument, LeMans relies on our deci-
sion in Rubie’s Costume Co. v. United States, 337 F.3d
1350, 1357-58 (Fed. Cir. 2003), in which we found that
Customs appropriately classified certain costumes as
“festive articles” under Chapter 95 rather than as wearing
apparel under Chapter 61. That case required us to
consider Note 1(e) to Chapter 95, which provides that
Chapter 95 does not include “[s]ports clothing or fancy
dress, of textiles, of chapter 61 or 62.” 4 See id. at 1356-57.
Pursuant to Note 1(e), if the costumes at issue constituted
“fancy dress, of textiles, of chapter 61 and 62,” which we
held encompassed textile costumes classifiable as “wear-
ing apparel,” they would be precluded from classification
in Chapter 95. Id.
In Rubie’s, we determined that the costumes at issue
were not “wearing apparel,” such that they could not be
considered articles of “fancy dress” that are excluded from
4 Rubie’s concerned the “fancy dress” component of
the exclusionary note, but the “sports clothing” portion of
the note is relevant here, as discussed below.
11 LEMANS CORP v. US
Chapter 95. Id. In so deciding, we relied on the fact that
the costumes were worn only on rare occasions, such as
during Halloween or at a costume party, included “one-
size-fits-all” varieties, and were “flimsy” and “lacking in
durability.” Id. at 1358. While acknowledging that the
category of “wearing apparel” includes clothing “worn for
decency or comfort” and “adornment,” we found that, to
the extent the items at issue in Rubie’s possessed those
features, they were secondary or incidental to the cos-
tumes’ festive value. Id. at 1357-58 (citing Antonio Pom-
peo v. United States, 40 Cust. Ct. 362, 364 (1958)). Unlike
the articles in Rubie’s, the subject merchandise in this
case shares more characteristics with ordinary apparel,
coming in different sizes and having the durability to be
worn repeatedly. In addition, whereas the comfort fea-
tures of the costumes were secondary, LeMans itself
explains that all of the articles at issue here are designed
to “provide optimal fit and comfort while participating in
the sport.” 5 Appellant’s Br. 8 (emphasis added). For
these reasons, we find LeMans’s reliance on Rubie’s
misplaced.
The government is correct that the headings and sub-
headings of Chapters 61 and 62 do not distinguish be-
tween apparel designed for general or specific uses. The
fact that articles are specialized or intended for specific
purposes, such as for sports, does not alone remove them
from the category of apparel. Indeed, Chapter 62 includes
heading 6211 for “track suits, ski-suits and swimwear;
5 While we recognize that the ice-hockey pants at
issue in Bauer, 393 F.3d at 1248, also were designed to
provide comfort, fit, and ventilation, that does not change
our analysis. We consider these features only as it relates
to classification of the subject merchandise as wearing
apparel, a question we assumed without deciding in
Bauer. Id. at 1251.
LEMANS CORP v. US 12
other garments,” which are, by their nature, items used in
particular athletic activities. It is true, moreover, that
“[v]irtually all wearing apparel is to a degree (often a high
degree) designed and worn to provide comfort and protec-
tion, often for very specific situations.” Daw Indus., Inc.
v. United States, 714 F.2d 1140, 1143 (Fed. Cir. 1983).
Despite LeMans’s argument to the contrary, the mer-
chandise in this case does not contain protective or spe-
cialized features to the same degree as the “crash
helmets” used by motorcycle and auto racers in Antonio
Pompeo, 40 Cust. Ct. at 366 (finding that “crash helmets”
“would not be considered in ordinary parlance to be
‘wearing apparel’ ”). Accordingly, because we find that
the CIT correctly applied the dictionary definitions of the
terms in the headings and subheadings and then correctly
concluded that the subject merchandise was wearing
apparel, we agree that Customs properly classified
LeMans’s goods under Chapters 61 and 62 of the HTSUS.
B. Sports Equipment under Chapter 95
LeMans contends that, even if the subject merchan-
dise is properly classifiable as apparel, it is also prima
facie classifiable as sports equipment, which requires
resort to the guidelines set forth in GRI 3(a) to determine
which heading provides the most specific description.
According to LeMans, a GRI 3(a) analysis requires classi-
fication of its goods under Heading 9506, which provides
for “[a]rticles and equipment for general physical exercise,
gymnastics, athletics, others sports,” rather than head-
ings 6110, 6201, and 6210. As discussed below, because
we disagree that the subject merchandise is prima facie
classifiable as sports equipment, we resolve this matter
under GRI 1 and do not consider LeMans’s argument
under GRI 3(a).
13 LEMANS CORP v. US
1. “Sports equipment”
The term “sports equipment” is not defined in the
HTSUS, so we are to look to the common and popular
meaning of the term. Bauer, 393 F.3d at 1250. Here, the
CIT correctly cited the dictionary definition of “equip-
ment” to find that “[t]o qualify as ‘equipment’ for a sport,
the good should generally provide ‘what is necessary,
useful, or appropriate [for that sport].’” CIT Decision, at
1383 (citing Webster’s Third New International Dictionary
768 (2002)).
We have employed this same definition for the term
“sports equipment” in our prior decisions. See Roller-
blade, 282 F.3d at 1354; Bauer, 393 F.3d at 1250-51. In
Rollerblade, we accepted a definition offered for this term
that “includes those articles that are necessary and spe-
cifically designed for use in athletics and other sports.”
282 F.3d at 1354. In Bauer, we again considered the
definition of “sports equipment” when we addressed the
proper classification for ice-hockey pants. 393 F.3d at
1250-51. There, we found that the CIT erred in applying
our Rollerblade decision too strictly when it found that
“equipment” meant only articles that are indispensible to
a sport or athletic activity. Because hockey could be
played without ice-hockey pants, the CIT held that such
pants were not necessary for that sport and, therefore, not
eligible for classification as sports equipment. Id. at 1250.
We reversed, explaining that, while the term “sports
equipment” includes items that are necessary for a sport,
it also includes items that are appropriate and useful for a
sport. Id. We concluded that, “[b]ecause it is undisputed
that Bauer’s pants were specially designed and intended
for use only while playing ice hockey, we hold, contrary to
the [CIT’s] conclusion, that the pants are prima facie
classifiable under subheading 9506.99.25 as ice-hockey
equipment.” Id. at 1251.
LEMANS CORP v. US 14
Relying on the dictionary definition of “equipment”
and our case law, LeMans argues that “sports equipment”
means either those goods that are “necessary, useful, or
appropriate” for a sport or those goods that are “specially
designed and intended for use” in a particular sport, even
if they might otherwise be wearing apparel. Appellant’s
Br. 12. According to LeMans, the subject merchandise
falls squarely within either definition, particularly in
light of the CIT’s statement that the subject merchandise
is “designed, engineered, and produced exclusively for use
while participating in motocross activities and other
power sports riding.” CIT Decision, at 1376 (quoting Pl.’s
Resp. to Def.’s First Interrogs. & Reqs. for Produc.).
Under LeMans’s theory, the fact that the merchandise is
designed exclusively for use in a particular sport should
compel the conclusion that the merchandise is prima facie
classifiable as sports equipment, and the court (and
Customs before it) should proceed to an analysis under
GRI 3(a) to determine which heading provides greater
specificity. We do not agree with LeMans that the analy-
sis is so narrow.
First, we find LeMans’s heavy reliance on Bauer mis-
placed. LeMans argues that the CIT’s holding in this case
is directly at odds with our decision in Bauer, which
LeMans believes is controlling. As discussed above, Bauer
turned on whether the CIT was correct in concluding that,
in order for articles to be sports equipment, they must be
“indispensable” for a sport. 393 F.3d at 1250. The CIT’s
decision in Bauer that the ice-hockey pants were not
classifiable as sports equipment hinged entirely on the
fact that hockey could be played without such protective
pants:
While the hockey pants provide protection to the
wearer, and are specially designed for use in the
sport of ice hockey, Plaintiff concedes that it is
15 LEMANS CORP v. US
possible to engage in the sport of ice hockey with-
out wearing the merchandise in question. As
such, the Court finds that the subject merchan-
dise is not essential or necessary for participation
in that sport. Consequently, Plaintiff’s ice hockey
pants are not articles of sports equipment, and are
therefore not classifiable as such.
Bauer Nike Hockey USA, Inc. v. United States, 305 F.
Supp. 2d 1345, 1357 (Ct. Int’l Trade 2003) (internal
citation omitted), rev’d, 393 F.3d 1246 (Fed. Cir. 2004). 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.
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. Bauer, 393 F.3d at
1248. Accordingly, they were much more like the exam-
ples of pads and guards listed in EN 95.06(B)(13), the
subsection of the Explanatory Notes that the CIT distin-
guished from the subject merchandise in this case. In-
deed, the plaintiff-appellant in Bauer expressly argued,
both before the CIT and on appeal to this court, that its
ice-hockey pants fell squarely within the range of exam-
ples of protective equipment for sports listed in EN
95.06(B)(13). Thus, despite LeMans’s argument to the
contrary, we find that Bauer does not compel the result
LeMans urges.
Next, as discussed below, resort to the Explanatory
Notes to Section 9506 supports the conclusion that the
LEMANS CORP v. US 16
subject items are not classifiable as sports equipment, as
LeMans urges.
2. Explanatory Notes
As the CIT found, and as the government urges on
appeal, the Explanatory Notes to Section 9506 offer
helpful guidance in our interpretation of the term “sports
equipment.” Although Explanatory Notes are not bind-
ing, they are persuasive and are “generally indicative” of
the proper interpretation of the tariff provision. Drygel,
541 F.3d at 1134. “Thus, in past cases we have credited
the unambiguous text of relevant explanatory notes
absent persuasive reasons to disregard it.” Id. (citing
Agfa Corp. v. United States, 520 F.3d 1326, 1330 (Fed.
Cir. 2008) and BASF Corp. v. United States, 497 F.3d
1309, 1315-16 (Fed. Cir. 2007)).
In this case, the Explanatory Notes to Section 9506
indicate that, to the extent “sports equipment” encom-
passes 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. 6 Example 13,
6 Subsection B of the Explanatory Notes to Heading
9506 states that Heading 9506 covers requisites for other
sports, such as:
(1) Snow-skis and other snow-ski equipment, (e.g., ski-
fastenings (ski-bindings), ski brakes, ski poles).
(2) Water-skis, surf-boards, sailboards and other wa-
ter-sport equipment, such as diving stages (platforms),
chutes, divers’ flippers and respiratory masks of a kind
used without oxygen or compressed air bottles, and
simple underwater breathing tubes (generally known
as “snorkels”) for swimmers or divers.
17 LEMANS CORP v. US
(3) Golf clubs and other golf equipment, such as golf
balls, golf tees.
(4) Articles and equipment for table-tennis (ping-
pong), such as tables (with or without legs), bats (pad-
dles), balls and nets.
(5) Tennis, badminton or similar rackets (e.g., squash
rackets), whether or not strung.
(6) Balls, other than golf balls and table-tennis balls,
such as tennis balls, footballs, rugby balls and similar
balls (including bladders and covers for such balls);
water polo, basketball and similar valve type balls;
cricket balls.
(7) Ice skates and roller skates, including skating boots
with skates attached.
(8) Sticks and bats for hockey, cricket, lacrosse, etc.;
chistera (jai alai scoops); pucks for ice hockey; curling
stones.
(9) Nets for various games (tennis, badminton, volley-
ball, football, basketball, etc.).
(10) Fencing equipment: fencing foils, sabres and rapi-
ers and their parts (e.g., blades, guards, hilts and but-
tons or stops), etc.
(11) Archery equipment, such as bows, arrows and tar-
gets.
(12) Equipment of a kind used in children’s play-
grounds (e.g., swings, slides, see-saws and giant
strides).
(13) Protective equipment for sports or games, e.g.,
fencing masks and breast plates, elbow and knee pads,
cricket pads, shin-guards.
(14) Other articles and equipment, such as requisites
for deck tennis, quoits or bowls; skate boards; racket
presses; mallets for polo or croquet; boomerangs; ice
axes; clay pigeons and clay pigeon projectors; bob-
sleighs (bobsleds), luges and similar non-motorised ve-
hicles for sliding on snow or ice.
LEMANS CORP v. US 18
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 items
such as masks, plates, pads, and guards, and it does not
reference articles that have more than minimal textile
components.
LeMans contends that the CIT erred in considering
the Explanatory Notes because: (1) the list in EN 95.06(B)
is not exhaustive and, therefore, that heading could
include apparel-like articles; and (2) the Explanatory
Notes conflict with the plain meaning of the term “sports
equipment.” Neither of these arguments is persuasive.
Although LeMans is correct that the list of examples in
EN 95.06(B) is not exclusive, the CIT did not find that the
Explanatory Notes precluded classification of LeMans’
goods as sports equipment, it found only that these exam-
ples informed its interpretation of the term “sports
equipment.” The examples in EN 95.06(B) do not conflict
with the term “sports equipment,” moreover; they merely
clarify the scope of that term. Use of Explanatory Notes
in this manner to interpret a heading of the HTSUS is
entirely proper. See StoreWALL, LLC v. United States,
644 F.3d 1358, 1363 (Fed. Cir. 2011) (rejecting an argu-
ment that importation of an exclusion from the Explana-
tory Notes improperly contradicts a term in a heading,
finding that it “instead clarifies the scope of the term”).
This case is unlike Airflow Technology, which LeMans
cites, where we discounted the significance of Explanatory
Notes because they were broader than, and directly at
odds with, a subheading term. Airflow Tech., Inc. v.
United States, 524 F.3d 1287, 1292-93 (Fed. Cir. 2008). In
EN 95.06(B).
19 LEMANS CORP v. US
Airflow Technology, we found that, pursuant to dictionary
definitions, the term “straining cloth” in subheading
5911.40.00 meant only material that separated solids
from liquids and was not synonymous with “filtering
cloth,” which had the broader capability of separating
solids from liquids or from gases, such as an air filter. Id.
at 1291-92. The Explanatory Notes to Heading 5911,
however, suggested that “straining cloth” included any
type of filtering cloth, including those used for filtering
air. Id. at 1292-93. Because the Explanatory Notes were
broader than, and directly contradictory to, a common
meaning of a subheading term, we did not give those
notes any weight. Id. at 1293. In this case, unlike in
Airflow Technology, none of the examples in EN 95.06(B)
are broader than the term “sports equipment,” nor do they
directly contradict either of the two definitions for that
term that LeMans itself proposes – i.e, goods that are
necessary, useful, or appropriate for a sport, or goods that
are specially designed and intended for use in a particular
sport. Accordingly, Airflow Technology does not compel a
different result here.
Lemans also relies on Rubie’s to support its position
that it is improper to resort to the Explanatory Notes in
this case. In Rubie’s, we explained that, “[a]bsent a
clearer showing of congressional intent, we refuse to
import incidental characteristics of the examples in the
Explanatory Notes into the headings of the HTSUS.” Id.
at 1359. Like Airflow Technology, however, Rubie’s does
not compel the conclusion LeMans urges.
In Rubie’s, we already had determined that the cos-
tumes at issue did not constitute “fancy dress of textiles,
of chapters 61 and 62,” such that accepting the govern-
ment’s distinction between “accessories” and “wearing
apparel” based on the Explanatory Notes would have
contradicted our earlier determination. In other words, to
LEMANS CORP v. US 20
the extent our statement in Rubie’s simply declined to
give weight to Explanatory Notes that contradicted an
already-defined term, it is distinguishable for the same
reasons as Airflow Technology. The Explanatory Notes in
Rubie’s, moreover, listed a total of only seven examples on
which the government relied that possessed what we
described as “incidental characteristics,” whereas the
Explanatory Notes in this case list as examples fourteen
separate categories of goods, identifying over fifty individ-
ual items, which uniformly consist of goods that are non-
apparel like in nature. These non-apparel characteristics
are more than merely “incidental”; they overwhelmingly
support the conclusion that the term “sports equipment”
does not encompass apparel such as the subject merchan-
dise.
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, bob-
sleds), held by the user in his or her hand (e.g., golf clubs,
tennis rackets, polo mallets, hockey sticks), or are acces-
sories 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 Explana-
tory 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
21 LEMANS CORP v. US
sports equipment under Chapter 95. 7
CONCLUSION
For the reasons stated above, the judgment of the CIT
is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
7 We also agree with the CIT that this conclusion is
supported by Note 1(e) to Chapter 95, which excludes
from that chapter “sports clothing or fancy dress, of
textiles, of chapter 61 or 62.” We acknowledge that Note
1(t) to Section XI, which encompasses Chapters 61 and
62, excludes from Section XI “Articles of chapter 95 (for
example, toys, games, sports requisites and nets),” and
that, in Bauer, we indicated it is inappropriate to resort to
these competing exclusionary notes before determining
the appropriate heading because that would “yield the
somewhat arbitrary result that the subject merchandise
could be classified under different chapters based solely
on which chapter the analysis began.” Bauer, 393 F.3d at
1253 n.6. In this case, because we first have found that
the subject merchandise is properly classifiable as apparel
under Chapter 61 or 62, and that it is not classifiable as
sports equipment under Chapter 95, we do not run afoul
of our warning in Bauer by finding that Note 1(e) bolsters
our conclusion.