Slip Op. 03-142
United States Court of International Trade
BAUER NIKE HOCKEY USA,
INC., f/k/a BAUER USA, INC.
Plaintiff, Before: Pogue, Judge
v. Court No. 00-00325
UNITED STATES,
Defendant.
[Defendant’s motion for summary judgment granted. Plaintiff’s
cross-motion for summary judgment denied. Judgment entered for
Defendant.]
Decided: October 27, 2003
Burak, Anderson, & Melloni, PLC (Jon T. Alexander, Michael B.
Rosenberg) for Plaintiff.
Peter D. Keisler, Assistant Attorney General, John J. Mahon,
Acting Attorney in Charge, International Trade Field Office, Amy
M. Rubin, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Sheryl A. French, Attorney, Of
Counsel, Office of Assistant Chief Counsel, International Trade
Litigation, U.S. Bureau of Customs and Border Protection, for
Defendant.
OPINION
Pogue, Judge: Plaintiff, BAUER NIKE Hockey USA Inc., f/k/a
Bauer USA, Inc. (“Bauer Nike” or “Plaintiff”) challenges a decision
of the United States Bureau of Customs and Border Protection
(“Customs” or “Defendant”)1 denying Plaintiff’s protests filed in
1
Effective March 1, 2003, the United States Customs Service
was renamed the United States Bureau of Customs and Border
Court No. 00-00325 Page 2
accordance with section 514 of the Tariff Act of 1930, as amended,
19 U.S.C. § 1514 (2000). At issue is the proper tariff
classification under the Harmonized Tariff Schedule of the United
States (“HTSUS”), 19 U.S.C. § 1202 (1994), of Plaintiff’s imports
of ice hockey pants.
Bauer Nike claims that the subject merchandise is classifiable
under subheading 9506.99.25, HTSUS, covering “[i]ce-hockey and
field-hockey articles and equipment, except balls and skates, and
parts and accessories thereof.”2 Goods classifiable under
subheading 9506.99.25 were free of duty for the years 1998, 1999,
and 2000 during which the subject merchandise was entered at the
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
2
Merchandise classifiable under subheading 9506.99.25,
HTSUS, includes:
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:
. . .
9506.99.25 Ice-hockey and field-hockey
articles and equipment, except
balls, and parts and accessories
thereof.
Subheading 9506.99.25, HTSUS (1998).
Court No. 00-00325 Page 3
port of St. Albans, Vermont.
Customs classified the merchandise under a residual or
“basket” provision, subheading 6211.33.00, HTSUS, covering “Other
garments, men’s or boy’s . . .: Of man-made fibers.”3 Goods
classifiable under that subheading were subject to duty rates of
16.6% (1998), 16.5% (1999), and 16.4% (2000) ad valorem.
Bauer Nike protested Customs’ classification. In response,
Customs’ issued Headquarters Ruling (“HQ”) 962072 (Aug. 12, 1999),
classifying the subject merchandise under subheading 6211.33.00.
Before the Court are cross-motions for summary judgment
pursuant to USCIT Rule 56. The Court has jurisdiction pursuant to
19 U.S.C. § 1515 (1994) and 28 U.S.C. § 1581(a) (1994). For the
reasons that follow, the Court finds that the subject merchandise
is properly classified under subheading 6211.33.00, HTSUS, as
“[t]rack suits, ski-suits and swimwear; other garments: Other
garments, men’s or boys’ . . .: Of man-made fibers,” and grants
summary judgment for Defendant.
3
Merchandise classifiable under subheading 6211.33.00,
HTSUS, includes:
6211 Track suits, ski-suits and swimwear; other
garments:
. . .
Other garments, men’s or boys’ . . .:
6211.33.00 Of man-made fibers.
Subheading 6211.33.00, HTSUS.
Court No. 00-00325 Page 4
Standard of Review
Customs’ classification is subject to de novo review by this
Court pursuant to 28 U.S.C. § 2640.4 The Court employs a two-step
process in analyzing a customs classification. “[F]irst, [it]
construe[s] the relevant classification headings; and second, [it]
determine[s] under which of the properly construed tariff terms the
merchandise at issue falls.” Bausch & Lomb, Inc. v. United States,
148 F.3d 1363, 1365 (Fed. Cir. 1998) (citing Universal Elecs., Inc.
v. United States, 112 F.3d 488, 491 (Fed. Cir. 1997)).
Interpretation of the tariff classification terms is a
question of law, while application of the terms to the merchandise
at issue is a question of fact. Bausch & Lomb, Inc., 148 F.3d at
1365. The Court will, nevertheless, consider the reasoning of a
Customs’ classification ruling, to the degree that the ruling
presents the “power to persuade.” United States v. Mead Corp., 533
U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)).
Summary judgment is appropriate where there exists no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. See USCIT Rule 56(d); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett,
4
As there are no factual disputes as to what constitutes the
subject merchandise here, the statutory presumption of
correctness is inapplicable to Customs’ classification. See
Intercontinental Marble Corp. v. United States, 27 CIT __, __
n.3, 264 F. Supp. 2d 1306, 1309 n.3 (2003).
Court No. 00-00325 Page 5
477 U.S. 317, 322 (1986). A dispute is genuine “if the evidence is
such that [the trier of fact] could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
In a challenge to a tariff classification, summary judgment is
appropriate when the dispute involves only the proper
classification of the subject merchandise, not the nature of the
merchandise itself. Bausch & Lomb, Inc., 148 F.3d at 1365-66.
Where there is a dispute about the nature of the subject
merchandise, there exists a genuine issue of material fact and a
trial is warranted.
Undisputed Facts
In the instant case, the parties agree that the merchandise at
issue is described as “hockey pants,” or “ice hockey pants”
represented by model numbers HP88, HP100, HP500, HP1000, HP3000 and
HP5000. Compl. of Bauer Nike at 2; Pl.’s Resp. to Def.’s Stat.
Mat’l Facts para. 1-2; Def.’s Stat. Mat’l Facts para. 1-2; Def.’s
Mem. Supp. Mot. Summ. J. at 1 (“Def.’s Mem.”). The hockey pants
are made entirely of synthetic materials. Pl.’s Resp. to Def.’s
Stat. Mat’l Facts para. 3; Def.’s Stat. Mat’l Facts para. 3. “The
basic design of the hockey pants is comprised of . . .: an exterior
nylon or polyester shell and an assemblage of interconnected hard
plastic guards [or plates] surrounded by soft [polyester, nylon or]
foam padding . . . attached to a belt beneath the exterior shell
Court No. 00-00325 Page 6
[or pants].” Laperriere Aff., Pl.’s Ex. 3 at 2; HP5000 (Large)
Mat’l Specs, Pl.’s Ex. 6 at 2-3 (indicating that the model’s:
floating pad is composed of nylon; thigh guard is composed of
polyester knit fabric and “P.U. foam;” spinal padding is composed
of nylon and polyester as well as other materials; belly pad is
composed of nylon and foam; and hip pads and tail pad are composed
of polyester as well as other materials); Pl.’s Mem. Supp. Cross-
Mot. Summ. J. and Opp’n to Def.’s Mot. Summ. J. at 3 (“Pl.’s
Mem.”); Def.’s Reply to Pl.’s Opp’n Def.’s Mot. Summ. J. and Resp.
Pl.’s Cross-Mot. Summ. J. at 3 (“Def.’s Reply”) (stating that
Defendant does not dispute Plaintiff’s description of “the history,
materials, design and injury-reducing properties” of the ice hockey
pants). Additional foam padding is sewn inside the shells of
certain models. Laperriere Aff., Pl.’s Ex. 3 at 2; Def.’s Reply at
3. The shell of models HP88, HP100, HP500, HP1000 and HP3000 is
permanently sewn to the internal belt, guards, and pads, whereas
the shell of model HP5000 is attached to the internal belt, guards
and pads by a series of metal buttons. See id. The belt, guards
and pads are interconnected by polyester or nylon straps, webbing,
mesh or braiding, see Pl.’s Mem. at 4, in order for the internal
belt to hold the guards and pads in the correct position.
Laperriere Aff., Pl.’s Ex. 3 at 3; Def.’s Reply at 3. The internal
belt, guards and pads comprise approximately eighty percent of the
total weight of the hockey pants, see Def.’s Reply at 3; Pl.’s Mem.
Court No. 00-00325 Page 7
at 5; see also Bauer Nike HP5000 Design Specifications, Pl.’s Ex.
5 (noting that a pair of model HP5000 pants weighs 2.30 kilograms),
and are designed to provide protection to the wearer, see Def.’s
Resp. to Pl.’s Stat. Mat’l Facts para. 5; Pl.’s Stat. Mat’l Facts
para. 6, by absorbing and deflecting blows, collisions, and flying
objects. Pl.’s Mem. at 14; Def.’s Reply at 3. Plaintiff markets
the ice hockey pants under a “protective equipment” category, Pl.’s
Stat. Mat’l Facts para. 1; Def.’s Resp. to Pl.’s Stat. Mat’l Facts
para. 1; Protective Information Pamphlet (1999), Pl.’s Ex. 10 at 2,
but also indicates that the hockey pants have comfort, fit, and
ventilation features. See, e.g., Excerpts of Bauer Nike’s Ice
Hockey Collection Catalogues, Def.’s Ex. D at 2 (noting that model
HP5000 provides “venting in the front of the pant, keeping the
player cool. The result–the player sweats less and therefore less
sweat is absorbed by the equipment so it stays light.”), 3 (stating
that models HP3000's and HP1000's three-piece thigh feature
“provides a more comfortable fit”), 4 (advertising the model HP100
as containing “200 deniers lightweight nylon for added comfort,”
and describing model HP500 as containing spandex and a mesh gusset
for “increase[d] stretch and ventilation for added comfort and
coolness”).5
As the parties agree as to the nature and material
5
Defendant, however, avers that an importer’s designation of
its articles is irrelevant for classification purposes. See
Def.’s Resp. to Pl.’s Stat. Mat’l Facts para. 1.
Court No. 00-00325 Page 8
characteristics of the merchandise, and disagree only as to its
proper classification under the HTSUS, summary judgment of the
classification issue is appropriate.
Issue Presented
The two competing headings at issue here are contained in
Chapters 62 and 95 of the HTSUS. Chapter 62, encompassed in
Section XI (“Textiles and Textile Articles”), covers “[a]rticles of
apparel and clothing accessories, not knitted or crocheted,” and
“applies only to made up articles of any textile fabric other than
wadding.” Chapter 62, HTSUS. Note 1(t) to Section XI states that
the section excludes articles of Chapter 95, or “toys, games,
sports requisites and nets.” Section XI, Note 1(t), HTSUS.
Chapter 95 specifically covers “[t]oys, games and sports equipment;
parts and accessories thereof.” Chapter 95, HTSUS. Note 1(e) to
Chapter 95 explicitly excludes “sports clothing . . . of textiles,
of chapter 61 or 62” from classification in that chapter.6 Chapter
95, Note 1(e), HTSUS.
Accordingly, the central question in this case is whether the
subject merchandise constitutes an article of sports clothing that
6
The Notes to Chapter 95 state, in relevant part, that:
1. This chapter does not cover:
(e) Sports clothing or fancy dress, of textiles, of
chapter 61 or 62.
Chapter 95, Note 1(e), HTSUS.
Court No. 00-00325 Page 9
is composed “of textiles” and otherwise falls within the purview of
chapter 62 as an article of apparel,7 thereby excluding the
merchandise from Chapter 95.
Parties’ Contentions
Plaintiff argues that the ice hockey pants are properly
classified as protective sports equipment under Heading 9506.
Pl.’s Mem. at 14. In particular, Bauer Nike claims that Customs
failed to consider whether the protection afforded by the ice
hockey pants was significantly greater or essentially different
from that offered by conventional textile trousers. Pl.’s Mem. at
25. Because the hockey pants are composed “predominately” of non-
textile materials, including molded plastic guards and foam
padding, and are designed to absorb the impact of blows and
collisions, Bauer Nike contends that the hockey pants’ protective
features “go far beyond conventional textile trousers.” See Pl.’s
Reply Mem. Supp. Cross-Mot. Summ. J. at 14 (“Pl.’s Reply”); Pl.’s
Mem. at 24-25, 39. Accordingly, Bauer Nike contends that the
hockey pants are no longer wearing apparel. See Pl.’s Mem. at 25,
27. Any aesthetic appeal, comfort, durability or mobility
attributable to the hockey pants, in Plaintiff’s opinion, is
“purely incidental, ancillary or subordinate to their sole function
7
As neither party contends that the subject merchandise is
classifiable under chapter 61, discussion is limited to chapter
62.
Court No. 00-00325 Page 10
of protecting players from the severe and unique hazards of ice
hockey.” Id. at 38. Bauer Nike also contends that the subject
hockey pants are dissimilar from the exemplars provided in
Explanatory Note (“Explanatory Note” or “EN”) 61.148 because the
bulk of the hockey pants here is made of foam pads and hard plastic
guards, rather than textiles. See id. at 40-41; Pl.’s Reply at 3.
Instead, Bauer Nike maintains that the merchandise at issue is
described directly by the exemplars listed in Explanatory Note
95.06(B)(13),9 because the hockey pants “encompass[] padded or
plated articles” and are specially designed to absorb blows and
collisions to prevent bone fractures, organ ruptures and other
hazards. Pl.’s Mem. at 41; see Pl.’s Reply at 3-4. Such features,
Bauer contends, are indicative of protective sports equipment.
8
Explanatory Note 61.14 to the Harmonized Commodity
Description and Coding System states, in relevant part, that:
This heading covers . . .
(5) Special articles of apparel used for certain sports
. . . (e.g., fencing clothing, jockeys’ silks, ballet
skirts, leotards).
Harmonized Commodity Description and Coding System, EN 61.14 (2d
ed. 1996) at 922.
9
Explanatory Note 95.06 states, in pertinent part, that:
This heading covers . . .
(B) Requisites for other sports and outdoor games . . .
e.g.: . . .
(13) Protective equipment for sports or games,
e.g., fencing masks and breast plates, elbow and
knee pads, cricket pads, shin-guards.
EN 95.06 at 1716-17 (emphasis supplied).
Court No. 00-00325 Page 11
Pl.’s Reply at 3 (citing H.I.M./Fathom, Inc. v. United States, 21
CIT 776, 783, 981 F. Supp. 610, 616 (1997)). Bauer Nike’s final
contention is that U.S. Note 12(a) to Subchapter II of Chapter 99
(“U.S. Note 12(a)”)10 fails to indicate Congressional intent to
classify ice hockey pants as sports clothing, and as an expired
provision, is inoperative. See Pl.’s Reply at 7, 9-10.11 Plaintiff
10
U.S. Note 12(a) states that:
12. (a) For the purposes of subheading 9902.62.01 –
(1) The term “sports clothing” refers to:
(A) ice hockey pants, provided for in
subheadings 6113.00, 6114.30, 6210.40,
6210.50, 6211.33 or 6211.43; and
(B) other articles of sports wearing apparel
which because of their padding, fabric,
construction, or other special features are
specially designed to protect against injury
(e.g., from blows, falls, road burns or
fire).
(2) The term “sports clothing” does not include
protective equipment for sports or games such as
fencing masks and breast plates, shoulder pads,
leg guards, chest protectors, elbow and knee pads,
cricket pads and shin guards.
U.S. Note 12(a), HTSUS (emphasis supplied).
11
Plaintiff also argues that each model of the hockey pants
at issue here is a composite good. Pl.’s Mem. at 22.
Plaintiff’s assertion lacks merit. Because both parties concede
that the hockey pants consist of an exterior shell and an
internal belt, pads and guards, and that those parts can be
purchased separately, see supra pp. 5-6; Bauer Nike Girdle, Style
Vapor 8, Pl.’s Ex. 16, Bauer Nike Shell, Pl.’s Ex. 17, Bauer
Nike, Style Vapor 4, Def.’s Ex. I, the hockey pants here cannot
constitute a composite good. EN IX to GRI 3(b) at 4
(“[C]omposite goods made up of different components shall be
taken to mean not only those in which the components are attached
Court No. 00-00325 Page 12
therefore argues that no deference should be extended to Customs’
classification of the subject merchandise. Pl.’s Mem. at 15.
Customs responds that the subject merchandise was properly
classified under Heading 6211. Def.’s Mem. at 6. As such, the
agency contends that its Headquarters Ruling 962072 is entitled to
deference. Id. at 11. Because the hockey pants are the “principal
mid-body covering worn by a person engaged in playing ice hockey,”
Def.’s Reply at 26, Customs’s first argument is that, even though
the hockey pants contain padding and are specially designed and
intended for use only while playing the sport of ice hockey,
classification is proper under Heading 6211 because the term
“garments” clearly and plainly describes the merchandise. Def.’s
Mem. at 14-15. The hockey pants are “garments,” Customs argues,
because the pants are worn as the outermost layer covering the body
and provide the wearer with, in addition to protection, decency,
fit, comfort, ventilation, and style. Id. at 19; Def.’s Reply at
23. Next, Customs claims that Note 1(e) to Chapter 95 expressly
excludes “all sports clothing” from classification in that chapter,
regardless of the level of protection extended to the wearer,
Def.’s Reply at 8 (emphasis supplied); consequently, the hockey
pants at issue are also excluded from classification in Chapter 95.
to each other to form a practically inseparable whole but also
those with separable components, provided these components are
adapted one to the other and are mutually complementary and that
together they form a whole which would not normally be offered
for sale in separate parts.”) (emphasis supplied).
Court No. 00-00325 Page 13
Def.’s Mem. at 20-22. Defendant’s next contention is that the
exemplars in Explanatory Note 95.06 (B)(13) are not ejusdem generis
with the imported hockey pants. Def.’s Reply at 26. Rather,
Customs contends that the hockey pants are similar to “fencing
clothing,” an exemplar provided in Explanatory Note 61.14, because
both articles are special articles of apparel only used while
participating in a certain sport and contain protective features.
See Def.’s Mem. at 20-21. As such, Customs argues that the
merchandise is classifiable as “sports clothing” under Chapter 62.
See id. at 20. Last, Customs relies on U.S. Note 12(a) as evidence
of Congressional intent that ice hockey pants are sports clothing
classifiable under Chapter 62. Def.’s Reply at 24.
Discussion
The HTSUS consists of (1) the General Notes; (2) the General
Rules of Interpretation (“GRI”); (3) the Additional U.S. Rules of
Interpretation; (4) sections I through XXII (encompassing chapters
1 through 99, including all section and chapter notes, article
provisions, and tariff and other treatment accorded thereto); and
(5) the Chemical Appendix. Classification of goods under the HTSUS
is governed by the General Rules of Interpretation (“GRI”). See
Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir.
1999); Orlando Food Corp. v. United States, 140 F.3d 1437, 1439
(Fed. Cir. 1998).
GRI 1 states that “for legal purposes, classification shall be
Court No. 00-00325 Page 14
determined according to the terms of the headings and any relative
section or chapter notes.” GRI 1, HTSUS; see also Orlando Food
Corp., 140 F.3d at 1440. Goods that cannot be classified solely by
reference to GRI 1 must be classified by reference to the
succeeding GRIs in numerical order. See N. Am. Processing Co. v.
United States, 236 F.3d 695, 698 (Fed. Cir. 2001). Thus, if the
application of GRI 1 provides the proper classification, the Court
may not consider any subsequent GRI. Mita Copystar Am. v. United
States, 160 F.3d 710, 712 (Fed. Cir. 1998) (“Mita I”).
Furthermore, “[a]bsent contrary legislative intent, HTSUS terms are
to be construed according to their common and commercial meanings,
which are presumed to be the same.” Carl Zeiss, Inc., 195 F.3d at
1379 (citation omitted).
The Court may also refer to the Explanatory Notes, which
constitute the World Customs Organization’s official interpretation
of the HTSUS. See Baxter Healthcare Corp. of Puerto Rico v. United
States, 22 CIT 82, 89 n.4, 998 F. Supp. 1133, 1140 n.4 (1998).
Although the Explanatory Notes are not legally binding, they are
useful in ascertaining the correct classification of the
merchandise in question. See Rollerblade, Inc. v. United States,
112 F.3d 481, 486 n.3 (Fed. Cir. 1997) (stating that the
Explanatory Notes are “intended to clarify the scope of HTSUS
subheadings and to offer guidance in interpreting its subheadings”)
(citing Mita Copystar Am. v. United States, 21 F.3d 1079, 1082
(Fed. Cir. 1994) (“Mita II”) (citation omitted)); see also Lonza,
Court No. 00-00325 Page 15
Inc. v. United States, 46 F.3d 1098, 1109 (Fed. Cir. 1995) (“While
the Explanatory Notes do not constitute controlling legislative
history, they do offer guidance in interpreting the HTS[US]
subheadings.”) (citation omitted). Determining which heading
provides the most appropriate classification of merchandise
requires close textual analysis of the language of the headings and
the accompanying explanatory notes.
As noted above, in this case, the critical distinction between
the two alternative Headings, 6211 and 9506, is provided by Note
1(e) to Chapter 95, which excludes sports clothing from
classification in that chapter and hence under Heading 9506. The
phrase “sports clothing, . . . of textiles, of chapter 61 or 62,"
is not defined within the HTSUS or by the relevant legislative
history. Based on a plain reading of the statutory language, the
provision encompasses textile articles of “sports clothing” that
are classifiable as wearing apparel under Chapter 62. See Rubie’s
Costume Co. v. United States, 337 F.3d 1350, 1356 (Fed. Cir. 2003).
Because the parties admit that the outer covering or shell of the
ice hockey pants is made exclusively of nylon and polyester,
several of the internal pads are partially composed of nylon or
polyester and the belt, guards, and pads are internally
interconnected by polyester or nylon straps, webbing, mesh or
braiding, supra pp.5-6, the merchandise is made “of textiles.”12
12
Nothing in the language of the phrase “of textiles”
requires that the textile portion predominate, particularly in
Court No. 00-00325 Page 16
The Court must therefore determine whether the ice hockey pants are
(1) articles of sports clothing (2) classifiable as wearing apparel
under Chapter 62.
A. “Sports Clothing”
Neither the HTSUS nor its legislative history defines the term
“sports clothing.” “When a tariff term is not defined in either
the HTSUS or its legislative history, the term’s correct meaning is
its common meaning.” Mita II, 21 F.3d at 1082 (citing Lynteq, Inc.
v. United States, 976 F.2d 693, 697 (Fed. Cir. 1992)). The Court,
in construing tariff terms, “may rely upon its own understanding,
dictionaries and other reliable sources.” Medline Indus., Inc. v.
United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995) (citation
omitted).
terms of composition by weight (otherwise those requirements, as
in other provisions of the HTSUS, would be specified), although
certainly the characteristic must not be incidental. While
Plaintiff does not directly claim that the ice hockey pants are
not “of textiles,” Plaintiff makes a related argument in
discussing the exemplars of Chapter 62. Infra subsection B.
There, Plaintiff argues that the ice hockey pants are dissimilar
from the exemplars of that chapter, i.e., “fencing clothing,
jockeys’ silks, ballet skirts, [and] leotards,” EN 61.14 at 922,
because those items are entirely made of textiles, whereas the
merchandise here is, in Plaintiff’s opinion, “predominately” made
of foam padding and plastic guards. Plaintiff has presented
uncontradicted evidence indicating that the internal belt, pads
and guards portion of the hockey pants weigh more than the shell
portion. This evidence is not problematic, however, because
Plaintiff concedes that the shell or pants as well as several
internal pads are made partially of nylon or polyester and that
the belt, guards and pads are interconnected by polyester or
nylon straps, webbing, mesh or braiding. Accordingly, the phrase
“of textiles” is satisfied under a plain reading.
Court No. 00-00325 Page 17
In H.I.M./Fathom, Inc. v. United States, the Court defined
“clothing” as a “‘covering for the human body or garments in
general: all the garments and accessories worn by a person at any
one time.’” 21 CIT at 781, 981 F. Supp. at 615 (quoting Webster’s
Third New International Dictionary 428 (1993)). Because clothing
is defined as a “garment,” and neither the HTSUS nor its
legislative history defines that term, it is necessary to ascertain
its common meaning. The Court has defined the term “garment” as
“‘an article of outer clothing (as a coat or dress) usu. exclusive
of accessories.’” H.I.M./Fathom, Inc. v. United States, 21 CIT at
781, 981 F. Supp. at 615 (quoting Webster’s Third New International
Dictionary 936). Thus, based on a common understanding of the term
“sports,” the Court finds that “sports clothing” is defined as
outer coverings or articles worn on the body while participating in
sports.
The ice hockey pants here undeniably constitute articles of
“sports clothing,” as the merchandise is worn on the human body as
pants exclusively while participating in the sport of ice hockey.
Accordingly, the Court finds that the ice hockey pants at issue are
articles of “sports clothing.” The question remains, however,
whether the textile ice hockey pants are classifiable as wearing
apparel under Chapter 62, thereby triggering the preclusive effect
of Note 1(e) to Chapter 95. See Rubie’s Costume Co. v. United
States, 337 F.3d at 1357.
Court No. 00-00325 Page 18
B. “Wearing Apparel” under Chapter 62
The Federal Circuit recently defined the term “wearing
apparel” in Rubie’s Costume Co. v. United States, 337 F.3d at 1357,
indicating that the term is “‘not an uncommon one in statutes, and
is used in an inclusive sense as embracing all articles which are
ordinarily worn — dress in general.’” Id. (quoting Arnold v.
United States, 147 U.S. 494, 496 (1893) (defining “wearing apparel”
under the predecessor classification statute, the Tariff Schedules
of the United States (“TSUS”)) (emphasis supplied)). The circuit
court further defined “wearing apparel” as “‘clothes or coverings
for the human body worn for decency or comfort[,] and common
knowledge indicates that adornment is also an element of . . .
wearing apparel.’” Rubie’s Costume Co., 337 F.3d at 1357 (quoting
Antonio Pompeo v. United States, 40 Cust. Ct. 362, 364 (1958)).
Plaintiff sets forth two additional definitions of the term
“wearing apparel” as defined under the TSUS. See Pl.’s Mem. at 26.
The first defines “wearing apparel” as articles worn not only “for
reasons of decency, comfort, or adornment but also ‘for protection
against the elements and those worn for protection against more
localized conditions prevailing in the environment of the home,
workplace, school, or restaurant.’” Id. (quoting Admiral Craft
Equip. Corp. v. United States, 82 Cust. Ct. 162, 163 (1979)
(dismissing plaintiff’s argument that wearing apparel does not
cover articles worn by humans essentially for protective purposes
as “obviously incorrect”)). The second definition adds that “‘all
Court No. 00-00325 Page 19
wearing apparel is to a degree (often a high degree) designed and
worn to provide comfort and protection, often for very specific
situations.’” Pl.’s Mem. at 26 (quoting Daw Indus., Inc. v. United
States, 714 F.2d 1140, 1143 (Fed. Cir. 1983)).
Because the subject merchandise also must be classifiable
under Chapter 62, the scope of that chapter must be examined.
Explanatory Note 61.14, which applies mutatis mutandis to garments
covered by Heading 6211, provides that the heading also includes,
“[s]pecial articles of apparel used for certain sports or for
dancing or gymnastics (e.g., fencing clothing, jockeys’ silks,
ballet skirts, [and] leotards).” EN 61.14 at 922. Customs
interprets this language narrowly, stating that “the term ‘certain’
limits the scope of . . . [H]eading [6211] 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.” Pl.’s Ex. 22, HQ 086973 (Apr. 30, 1990); see also
HQ 951640 (July 16, 1992) (same); Def.’s Ex. J, HQ 951627 (Aug. 14,
1992) (stating that Heading 6114 “does not cover all wearing
apparel which could be worn for sports, but only those sports
clothes which are specially designed to be worn in a particular
sport and which would not ordinarily be worn any other time”). For
example, Customs has explained that “while football pants or
baseball knickers might be classifiable in [H]eading 6211, such
articles as tennis or rugby shorts, which are often worn off the
court or playing field, would most likely not be so classifiable.”
Court No. 00-00325 Page 20
Pl.’s Ex. 22, HQ 086973 (Apr. 30, 1990). Accordingly, it appears
that an article of clothing is classifiable under Chapter 62 as a
“special article[] of apparel used for certain sports” if the
article is ordinarily worn on the human body, specially designed
for a specific sport, and limited in use to that sport as evidenced
by the construction of the garment. Def.’s Ex. K, HQ 957469 (Nov.
7, 1995); see also HQ 951640 (July 16, 1992) (classifying ice
hockey official’s pants under Heading 6114 because the pants were
sports clothing and only worn while engaging in the sport, as
evidenced by the fact that the pants were sized proportionally to
the protective equipment worn underneath the pants).
The Court has further recognized that Chapter 62, HTSUS, also
includes articles of apparel strictly worn for protective purposes.
H.I.M./Fathom, 21 CIT at 782 n.3, 981 F. Supp. at 616 n.3. In
H.I.M./Fathom, the Court acknowledged that “the garment provisions
of the HTSUS include certain items the principal use of which is
not comfort and adornment.” Id. For example, the garment
provisions cover “‘[n]onwoven disposable apparel designed for use
in . . . contaminated areas,’ [articles] obviously not worn for
pure decency, comfort or adornment but for protection.” See id.;
see also Def.’s Ex. M, HQ 959595 (Mar. 24, 1999) (classifying
chainsaw protective vest containing an outer nylon shell coated in
polyurethane and internal layers of pads comprised of polyester,
polypropylene, and nylon as “other garments” because the vest
provided protection to the wearer from particular hazards
Court No. 00-00325 Page 21
encountered in specific occupations, and was similar to the types
of clothing named in the explanatory note to Heading 6211).
Accordingly, in the instant case, the hockey pants constitute
articles of wearing apparel. The hockey pants are ordinarily worn
as an outer covering on the body for comfort, fit, ventilation, and
protective purposes only while participating in the sport of ice
hockey. Moreover, the ice hockey pants are classifiable under
Chapter 62. Because neither party disputes that the merchandise at
issue is only used while engaging in ice hockey, as evidenced by
the merchandise’s protective, comfort, and ventilation features,
and that the merchandise is specially designed for use in the sport
of ice hockey, the ice hockey pants are “special articles of
apparel used for certain sports.” The merchandise at issue here is
therefore covered by the express language of Heading 6114, and
consequently, Heading 6211.
Contrary to Bauer Nike’s contention, in light of the fact that
the Court finds the hockey pants are special articles of apparel
used for a certain sport, the subject merchandise is similar to the
exemplars provided in Explanatory Note 61.14. In particular, the
Court is not persuaded by Plaintiff’s argument that because the
bulk of the hockey pants is made of foam pads and hard plastic
guards, rather than textiles, the merchandise at issue is
dissimilar from the exemplars provided therein. Plaintiff’s own
evidence undermines its argument. While Plaintiff presented
uncontradicted evidence that the internal belts, pads, and guards
Court No. 00-00325 Page 22
compose eighty percent of the merchandise’s weight, Bauer Nike also
submitted evidence indicating that the belt, pads and plates are
held together by nylon or polyester straps, webbing, mesh or
braiding. Moreover, several of the internal pads are made
partially of nylon or polyester. Last, the shell or outer covering
is made entirely of textiles. Such evidence casts doubt on
Plaintiff’s claim that the hockey pants are “predominately” made of
foam pads and plastic guards.
Furthermore, like the hockey pants here, one of the exemplars,
fencing clothing, also contains a protective feature that includes
padding. Specifically, the “plastron” contains an internal textile
pad covered by an outer textile material. Def.’s Ex. H, Clothing
at 2 available at http://sitka.triumf.ca/morgan/faq_2.1.html
(noting that a “plastron” is an article of fencing clothing); The
American Heritage Dictionary of the English Language 1386 (3d ed.
1996) (defining “plastron” as “[a] quilted pad worn by fencers to
protect the torso and side”). Because both articles contain an
internal pad covered by a textile fabric, the two articles are
similarly constructed.
In determining whether the hockey pants are “wearing apparel,”
Bauer Nike further contends that the Court must consider whether
the protective functions of the subject merchandise go “far beyond
that of general wearing apparel,” such that the ice hockey pants
are no longer wearing apparel for classification purposes. See
Pl.’s Mem. at 27 (citation omitted). Such an inquiry, according to
Court No. 00-00325 Page 23
Bauer Nike, requires that the Court consider whether the ice hockey
pants “provide significantly more, or essentially different,
protection than analogous articles of clothing.” Id. at 28
(citation omitted). Plaintiff relies on case law and various
Customs’ ruling letters to support its contention. Id. at 27-29;
Pl.’s Reply at 13.13
The Court finds Bauer Nike’s argument lacks merit for several
reasons. First, the determinations on which Bauer Nike relies fail
13
In particular, Plaintiff cites to the following
determinations: Admiral Craft Equip. Corp., 82 Cust. Ct. at 163;
Dynamics Classics, Ltd. v. United States, 10 CIT 666 (1986); Daw
Indus., Inc., 714 F.2d at 1143-44 (finding sheaths and socks used
exclusively with prostheses were classifiable as other prosthetic
articles, rather than “wearing apparel” under the TSUS); Pl.’s
Ex. 23, HQ 965312 (Jan. 14, 2002) (concluding that buoyancy
compensators were “dive equipment” under Heading 9506, rather
than “wearing apparel” under Heading 6210, because the
compensator’s use went “far beyond that of a typical jacket or
vest,” the warmth and protection features were ancillary to the
buoyancy function, and prior precedent of the Court classified
scuba diving equipment under subheading 9506.29.0040, but noting
that note 1(e) to Chapter 95 did “not operate to exclude [the
merchandise] from Chapter 95 because . . . compensators [we]re
not clothing”); Pl.’s Ex. 24, HQ 965196 (Nov. 21, 2001) (same);
Pl.’s Ex. 27, HQ 952204 (Apr. 12, 1993) (classifying a swim
sweater under Heading 6307 as other articles made up of textiles
rather than a garment under Heading 6114)); Pl.’s Ex. 34, HQ
960166 (Aug. 28, 2002) (finding that a textile swimming aid was a
garment classifiable under Heading 6112, rather than other made
up articles of textiles under Heading 6307); Pl.’s Ex. 35, HQ
965313 (Jan. 14, 2002) (concluding that buoyancy compensators
were “dive equipment” under Heading 9506, rather than “wearing
apparel” under Heading 6211, because the compensator’s use went
“far beyond that of a typical jacket or vest,” but noting that
note 1(e) to Chapter 95 “does not operate to exclude [the
merchandise] from Chapter 95 because . . . compensators [we]re
not clothing”); Pl.’s Ex. 36, HQ 952483 (May 27, 1993)
(classifying personal buoyancy vests under Heading 6307 as other
made up articles, rather than a garment).
Court No. 00-00325 Page 24
to assist the Court in adjudicating the legal issue presented here
because they were developed in a different context. While each of
the cited determinations discussed the term “wearing apparel,” and
the articles classified therein provided some degree of protection
to the wearer, none of the determinations explain whether the
merchandise at issue there constituted articles of “sports
clothing” classifiable as wearing apparel under Chapter 61 or 62.
E.g., Admiral Craft Equip. Corp., 82 Cust. Ct. at 162-63
(discussing whether disposal plastic aprons and lobster bibs were
classifiable as “plastic wearing apparel” or “other plastic
articles not specially provided for” under the TSUS); Dynamics
Classics, Ltd., 10 CIT at 667 (analyzing whether plastic exercise
suits chiefly used for weight and girth reduction were classifiable
as plastic “wearing apparel” or “other [plastic] articles not
specially provided for” under the TSUS). The Court therefore finds
it unnecessary to apply Plaintiff’s proffered “wearing apparel”
test.
Here, Customs’ interpretation of the relevant provisions at
issue is consistent with previous classification determinations of
similar articles of sports clothing identified as hockey pants or
ice hockey pants. See, e.g., NY A87152 (Sept. 9, 1992)
(classifying ice hockey pants composed of woven nylon fabric, a
textile belt, and padding in the leg and above the waist as sports
clothing under Note 1(e) to Chapter 95); Pl.’s Ex. 22, HQ 086973
(Apr. 30, 1990) (classifying ice hockey pants composed of nylon and
Court No. 00-00325 Page 25
internal padding as sports clothing under Note 1(e) to Chapter 95
and Heading 6114 because the pants were only worn while engaging in
ice hockey). Consequently, neither the Supreme Court’s
articulation nor the three cases which further develop the “wearing
apparel” standard supports the application of Plaintiff’s proffered
test here.
Accordingly, the Court concludes that the ice hockey pants are
sports clothing classifiable as wearing apparel under Chapter 62.
Note 1(e) to Chapter 95 therefore precludes classification of the
subject merchandise from that chapter.
C. Articles of Equipment Classifiable under Chapter 95
The Court further finds Plaintiff’s arguments that the ice
hockey pants are articles of protective sports equipment
classifiable under Heading 9506, HTSUS, unpersuasive. Heading 9506
covers “[a]rticles 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.”
Customs’ has interpreted this heading as encompassing “apparatus
for use while engaging or participating in the sport; a physical
necessity for the sport.” HQ 951640 (July 16, 1992). Customs has
noted, however, that Heading 9506 “embraces only certain forms of
protective gear, and that sports clothing, regardless of the
protection they afford the wearer, is still excluded.” NY A87152
Court No. 00-00325 Page 26
(Sept. 9, 1992).
The term “equipment” must also be defined in accordance with
its common meaning, as the term is not defined by either the HTSUS
or its legislative history. The Court has defined “equipment” as
“‘Something with which a person, an organization, or a thing is
equipped;’ ‘equip,’ in turn, is defined as ‘To supply with
necessities such as tools or provisions.’” Rollerblade, Inc. v.
United States, 24 CIT 812, 819, 116 F. Supp. 2d 1247, 1255 (2000)
(quoting The American Heritage Dictionary at 622 (1996)), aff’d 282
F.3d 1349, 1354 (Fed. Cir. 2002); see also Webster’s Third New
International Dictionary 440 (defining “equipment” as “the
equipping of a person or thing” and “equip” as “to provide with
what is necessary, useful, or appropriate”). More recently, the
Federal Circuit has defined “equipment” as “those articles that are
necessary and specifically designed for use in athletics and other
sports.” See Rollerblade, Inc. v. United States, 282 F.3d at 1354.
Customs has ruled that 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 or the equipment designed for use by the player in the
training, practice and conduct of . . . sporting activities.” NY
D85049 (Dec. 14, 1998) (emphasis added). Equipment also plainly
encompasses articles containing protective features. See EN
95.06(B)(13) at 1716-17 (“Requisites for other sports and outdoor
games . . . e.g.: (13) Protective equipment for sports or games,
Court No. 00-00325 Page 27
e.g., fencing masks and breast plates, elbow and knee pads, cricket
pads, shin guards.”) (emphasis supplied); see also Slazengers, Inc.
v. United States, 33 Cust. Ct. 338, 339 (1954) (articles that serve
“no other purpose but to aid in a safer and more efficient game .
. . are within the designation of ‘equipment.’”); HQ 956582 (Mar.
14, 1995) (classifying wrist protectors designed to perform a
protective function as sports equipment, rather than sports
clothing, under Heading 9506).
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 possible to engage in the sport of
ice hockey without wearing the merchandise in question. Pl.’s
Resp. to Def.’s Stat. Mat’l Facts para. 8. As such, the Court
finds that the subject merchandise 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’s reliance on the exemplars provided in Explanatory
Note 95.06(B)(13) to support its argument is also misplaced.
Explanatory Note 95.06(B)(13) explains that “[p]rotective equipment
for sports or games, [includes] fencing masks and breast plates,
elbow and knee pads, cricket pads, [and] shin-guards.” EN
95.06(B)(13) at 1717. While the hockey pants contain internal
padding and guards, requisite materials for classifying merchandise
as “protective equipment,” H.I.M./Fathom, Inc., 21 CIT at 783, 981
Court No. 00-00325 Page 28
F. Supp. at 616 (noting that “equipment such as padding and guards”
are included in chapter 95), unlike the exemplars, the pads and
guards here are contained within an outer nylon or polyester shell
or pant. Therefore, the hockey pants are constructed differently
from the exemplars of Explanatory Note 95.06(B)(13). HQ 083859
(Apr. 25, 1989) (distinguishing ice hockey pants composed of an
outer and inner shell in addition to internal padding sewn inside
the article and a belt from the exemplars listed in Explanatory
Note 95.06(B)(13) because the exemplars “may not be contained in an
article of sports clothing to be included in chapter 95. [The
exemplars] must be separate and apart from another article.”); see
also HQ 084622 (June 21, 1989) (same), revoked on other grounds by
HQ 956289 (June 20, 1994). Consequently, the exemplars provided in
Explanatory Note 95.06(B)(13) are distinguishable from the hockey
pants at issue.
The Court is also not convinced that the type of protection
afforded by the exemplars and the subject merchandise, alone,
establishes that the ice hockey pants are ejusdem generis with the
exemplars of sports equipment. Even though Customs has previously
held that “sports protective equipment intended for inclusion
within Heading 9506 . . . [includes] equipment having protective
features with the sole or primar[]y function of directly absorbing
the impact of blows, collisions or flying objects,” Pl.’s Ex. 28,
HQ 965236 (Dec. 5, 2001); see also Pl.’s Ex. 29, NY H87701 (Mar.
11, 2002), Pl.’s Ex. 31, NY D83060 (Oct. 6, 1998), those decisions
Court No. 00-00325 Page 29
did not consider the legal issue presented here, i.e., whether the
subject merchandise constitutes sports clothing that is
classifiable as wearing apparel under Chapter 62. In fact, Customs
has previously classified similar articles presenting the same
legal issue as well as affording the same protections as the
merchandise in question here as sports clothing under Chapter 62.
See, e.g., NY A87152 (Sept. 9, 1992) (classifying ice hockey
pants); Pl.’s Ex. 22, HQ 086973 (Apr. 30, 1990) (classifying
analogous articles identified as hockey pants). The Court is
therefore not persuaded by Bauer Nike’s contention.
Last, U.S. Note 12(a) lends further support for the conclusion
that the subject merchandise is not classifiable under Chapter 95
of the HTSUS as “sports equipment.” U.S. Note 12(a) states that
the term “sports clothing” contained in subheading 9902.62.01
refers to “ice hockey pants, provided for in subheadings 6113.00,
6114.30, 6210.40, 6210.50, 6211.33, or 6211.43” and “other articles
of sports wearing apparel which because of their padding, fabric,
construction, or other special features are specially designed to
protect against injury (e.g., from blows, falls, road burns or
fire).” U.S. Note 12(a), HTSUS (emphasis omitted).14 Subheading
14
Subheading 6113.00 covers “[g]arments, made up of knitted
or crocheted fabrics of [H]eading 5903, 5906 or 5907.”
Subheading 6113.00, HTSUS. Heading 5903 includes “[t]extile
fabrics impregnated, coated, covered or lamented with plastics.”
Heading 5903, HTSUS. Heading 5906 encompasses “[r]ubberized
textile fabrics, other than those of [H]eading 5902.” Heading
5906, HTSUS. Subheading 5907.00 covers “[t]extile fabrics
otherwise impregnated, coated or covered: painted canvas being
Court No. 00-00325 Page 30
9902.62.01, a provision which expired on December 31, 1992,
provided a temporary duty rate reduction to articles of “[s]ports
clothing, however provided for in chapters 61 and 62." See
subheading 9902.62.01, HTSUS; Customs and Trade Act of 1990, Pub.
L. No. 101-382, § 426, 1900 U.S.C.C.A.N. (104 Stat.) 629, 688-89.
The temporary rate permitted articles of “sports clothing” to enter
the U.S. duty free, or at the “rate of duty that . . . applied to
such articles under the [TSUS].” See id. Prior to the conversion
into the HTSUS on January 1, 1989, articles of “sports clothing” as
specifically defined above were generally classified as sports
“equipment” under the TSUS and afforded duty free tariff treatment.
See id.; Mem. from U.S. Int’l Trade Comm. to The Committee on
Finance of the United States Senate, S.718, 101st Congress, A Bill
to Amend the Harmonized Tariff Schedule of the United States to
Provide Duty-Free Treatment for Certain Sports Clothing, Def.’s Ex.
N at 1, 4. It can logically be concluded, in light of the fact
that Congress enacted a temporary duty rate reduction after the
conversion into the HTSUS, that the articles explicitly defined in
theatrical scenery, studio back-cloths or the like.” Subheading
5907.00, HTSUS. Subheading 6114.30 covers “[o]ther garments,
knitted or crocheted: Of man-made fibers.” Subheading 6114.30,
HTSUS. While subheading 6210.40 encompasses “[o]ther men’s or
boys’ garments: Of man-made fibers,” subheading 6210.50 covers
“[o]ther women’s or girls’ garments: Of man-made fibers.”
Subheading 6210.40, HTSUS; subheading 6210.50, HTSUS. Subheading
6211.33 covers “[o]ther garments, men’s or boys’: Of man-made
fibers,” and subheading 6211.43 encompasses “[o]ther garments,
women’s or girls’: Of man-made fibers.” Subheading 6211.33,
HTSUS; subheading 6211.43, HTSUS.
Court No. 00-00325 Page 31
U.S. Note 12(a) as “sports clothing,” including ice hockey pants,
endured a change in classification under the HTSUS. To conclude
otherwise would render the effect of the temporary duty rate
reduction meaningless, as imports of equipment entered the U.S.
duty free during the effective dates of that rate reduction. See,
e.g., subheading 9506.99.25, HTSUS (1990). Although U.S. Note
12(a) is legally inoperative, see The Reform, 70 U.S. 617, 629
(1865) (“[A] statute, temporary in its terms, cannot be enforced
after the statute has expired.”), and therefore has no binding
effect on the Court, the note suggests that “sports clothing” as
defined therein is not classifiable as “equipment” under the
HTSUS.15
Conclusion
Because the ice hockey pants in question are articles of
sports clothing classifiable as wearing apparel under Chapter 62,
the Court finds that the subject merchandise is expressly precluded
from classification in Chapter 95 under Note 1(e) to that chapter.
15
The Court is also not persuaded by Plaintiff’s reliance on
two foreign classification decisions from Canada and the European
Union. Pl.’s Ex. 32; Pl.’s Ex. 33. The decisions proffered by
Plaintiff fail to define the legal terms at issue in this case,
i.e., “sports clothing” and “equipment.” Rather, the decisions
merely determine that the merchandise there was equipment. See
Sarne Handbags Corp. v. United States, 24 CIT 309, 316 n.16, 100
F. Supp. 2d 1126, 1133 n.16 (2000). Furthermore, as the
decisions apply the local tariff provisions of the country
rendering the determination, they fail to assist the Court in
interpreting the tariff terms at issue here under the HTSUS.
Court No. 00-00325 Page 32
Accordingly, Customs correctly classified Bauer Nike’s ice hockey
pants under subheading 6211.33.00, HTSUS.16 As such, Bauer Nike’s
motion for summary judgment is denied. In turn, Customs’ motion
for summary judgment is granted, and judgment will be entered for
Defendant.
Donald C. Pogue
Judge
Dated: October 27, 2003
New York, New York
16
Plaintiff contends, in the alternative, that the
merchandise should be classified under a GRI 3 analysis. Pl.’s
Mem. at 20, 22. Because the Court classified the subject
merchandise under GRI 1, the Court cannot reach this argument.
See Mita I, 160 F.3d 710, 712 (Fed. Cir. 1998).