Application for Further Review of Protest No. 2720-08-100090; Classification of Nike Pro Impact Football Girdles, Style number 219724

HQ H207519 April 22, 2015 CLA-2: OT: RR: CTF: TCM H207519 ERB CATEGORY: Classification TARIFF NO.: 6114.30.30 Port Director Los Angeles International Airport Cargo Operations U.S. Customs and Border Protection 11099 South La Cienega Blvd. Los Angeles, CA 90045 Attn: Susan Frias, Import Specialist RE: Application for Further Review of Protest No. 2720-08-100090; Classification of Nike Pro Impact Football Girdles, Style number 219724 Dear Port Director: This is in reference to the Application for Further Review (AFR) of Protest No. 2720-08-100090, timely filed on February 20, 2008, on behalf of Nike USA, Inc. (Nike). The AFR concerns the tariff classification of the Nike Pro Impact Football Girdle, style number 219724, in various sizes, under the Harmonized Tariff Schedule of the United States (HTSUS). No sample was submitted for analysis. This AFR involves one shipment entered on March 24, 2007. The product is a compression short constructed of 82% polyester, 18% spandex, single knit plain jersey fabric, with ethylene-vinyl acetate (EVA) foam pads permanently sewn in at the hips and tail bone. There are separate inside pockets for the insertion of thigh pads, imported and sold separately. Nike imported the girdles under subheading 9506. 99.20, HTSUS, which provides for, "Articles and equipment for general physical exercise,... other sports... ; parts and accessories thereof: Other: Football, soccer and polo articles and equipment, except balls, and parts and accessories thereof." CBP liquidated the subject merchandise on February 8, 2008, under subheading 6114.30.30, HTSUS, which provides for, "Other garments, knitted or crocheted: Of man-made fibers: Other." Our response to this AFR was delayed pending the outcome of litigation in Riddell, Inc. v. United States, 2014 U.S. App. LEXIS 11608 (Fed. Cir. June 20, 2014). ISSUE: Whether the subject Nike Pro Impact Football Girdle is classified as, "other garments, knitted or crocheted" under heading 6114, HTSUS, or as "sports equipment" under heading 9506, HTSUS. LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade & Technical Corrections Act of 2004, Pub. L. 108-429 §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §1514(c)(3)(2006)). Further review of Protest No. 2720-08-100090 is properly accorded to Nike pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts, at the time the AFR was filed. Specifically, the question raised was whether specialized apparel used in sports (specifically, football) constitutes "sports equipment," under the tariff. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRls may then be applied. The HTSUS subheadings under consideration are the following: 6114 Other garments, knitted or crocheted: *** 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: Section XI Note 1(t) states "[tJhis section does not cover: Articles of chapter 95 (for example, toys, games, sports requisites and nets)." Section XI includes chapter 61, HTSUS. Therefore, by operation of Note 1(t), if the subject merchandise is properly classifiable in chapter 95, HTSUS, then it is precluded from classification in chapter 61, unless it is covered by Note 1(e) to Chapter 95, which excludes "Sports clothing or fancy dress, of textiles, of chapter 61 or 62." In tariff classification rulings, CBP also refers to the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System. The ENs constitute the official interpretation of the Harmonized System at the international level, and while not dispositive or legally binding, they provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The EN to 95.06 states in relevant part: This heading covers: *** {B) Requisites for other sports and outdoor games ... *** {13) Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads. It goes on: This heading excludes: *** {e) Sports clothing of textiles, of Chapter 61 or 62, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin area {e.g., fencing clothing or soccer goalkeeper jerseys}. [Emphasis in original] The Court of Appeals for the Federal Circuit (CAFC) has issued several opinions considering the tariff term "sports equipment." The framework crafted in those opinions guide CBP's analysis and ruling here. Specifically, for Nike to prevail in the instant case, it would have to be shown that the football girdles satisfy the Lemans, Bauer Nike, and Riddell definition of "sports equipment." The term "sports equipment" is not defined in the tariff. However, "[t]o qualify as 'equipment' for a sport, the good should generally provide 'what is necessary, useful or appropriate [for that sport]." Lemans Corp. v. United States, 660 F.3d 1311, 1318 (Fed. Cir. 2011), (citing Lemans Corp. v United States, 675 F. Supp. 2d 1374 (Ct. lnt'I Trade 2010) citing Webster's Third New International Dictionary 768 (2002)). See also Rollerblade, Inc. v. United States, 282 F.3d 1349, 1354 (Fed. Cir. 2002) ('The definition offered for "equipment" includes those articles that are necessary and specifically designed for use in athletics and other sports.") The CAFC in Lemans noted that the CIT in the underlying case properly looked to the Explanatory Notes to Section 95.06 to assist with the interpretation of Heading 9506, HTSUS. The "vast majority of the examples in [the ENs] 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," and are "held by the user in his or her hand," or "are accessories fastened to a user." Lemans Corp. v. United States, 660 F.3d 1311, 1321 (Fed. Cir. 2011). A few examples in the ENs are items "that a user actually would wear," but those "are almost exclusively used for protection and would complement or be worn in addition to apparel worn for a particular sport." Id at 1322.  The CAFC recently applied this standard to goods similar to the subject merchandise, in Riddell, Inc. v. United States, 754 F.3d 1375 (Fed. Cir. 2014). There the CAFC was considering, among other items, football girdles, which are made of polyester, are worn beneath football pants, extend from the waist to the thigh and hold hip and tail pads in place. The subject merchandise is identical to the merchandise under consideration in Riddell, with the addition of some EVA foam pads permanently sewn in at the side hips and tail bone. The Riddell court, citing Lemans and Bauer, acknowledged, "in Bauer we assumed, and in Lemans we held, that merchandise containing some protective padding still fell within the scope of headings in those chapters [chapters 61 and 62]." Id at 1381. [Emphasis in original]. Citing Lemans, "[t]he fact that articles are specialized or intended for specific purposes, such as for sports, does not alone remove them from the category of apparel. Id at 1381 citing Lemans, supra, 660 F.3d 1311 at 1317. The girdles, "ha[ve] not been so transformed as to lose its character as an item properly described as "apparel"." Riddell, supra, at 1381 citing Came/Bak Prods., LLC v. United States, 649 F.3d 1361, 1367-68 (Fed. Cir. 2011} (sufficient "change in identity" may remove item from an article-naming provision). Finally, though the girdles in Riddell was "designed exclusively for use in a particular sport" it is not "almost exclusively used for protection, does not "complement" apparel, and is not "worn in addition to [] apparel," rather, "Riddell's merchandise is apparel, used along with protective equipment." Riddell, supra, 754 F.3d at 1381, citing Lemans, supra 660 F.3d at 1322. As was the case there, is the case here. The Nike Pro Impact Football Girdle is apparel used along with protective equipment. The girdle is worn directly over the body, as with all apparel and garments. The function of the separately inserted pads is to protect the body from injury. The small amount of EVA padding sewn into the subject merchandise is incidental because the entirety of the girdle is composed of textiles and is not protective in nature. The girdle is properly described as "apparel," and it does not lose its identity as apparel if worn alone or in conjunction with other articles. Furthermore, the subject merchandise is not akin to the exemplars listed in the ENs to 95.06, nor is it similar to the protective hockey pants at issue in Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246 (Fed. Cir. 2004), because it lacks rigid, non-textile components. ' Specifically, EN 95.06(8)(13) states that the heading covers: "Protective Equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads." Thus, the ENs indicate that these examples refer to items such as masks, plates, pads and guards worn by a user almost exclusively for protection. They do not reference articles that are apparel-like and have more than minimal textile components that keep them together. These exemplars are clearly distinguishable from the girdles at issue here, and for these reasons, the girdle is not "sports equipment" within the scope of heading 9506, HTSUS. Turning to the issue of the tariff word "girdle" specifically, the CAFC separately considered the Riddell girdles because the football girdle did not provide "body support" as the "essential characteristic" of goods classified in heading 6212, HTSUS. As such, the Riddell court classified the girdles not as, "brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof," under heading 6212, HTSUS, but rather under heading 6114, HTSUS, as "other garments, knitted or crocheted." This analysis is applicable to the subject Nike Pro Impact Football Girdle. CBP has consistently made the distinction between girdles that support the body, and girdles used for sports. See Headquarters Ruling (HQ) 957269, dated November 7, 1005, ("Customs believes that...girdles [under heading 6212] are commonly understood to be undergarments which provide support."). The subject merchandise is thus properly classified in heading 6114, HTSUS. HOLDING: By application of GRI 1, and in accordance with note 1(t) to Section XI, and note 1{e) to chapter 95, the subject Nike Pro Impact Football Girdle is classified under heading 6114, HTSUS. They are specifically provided for in subheading 6114.30.30, HTSUS, which provides for, "Other garments, knitted or crocheted: Of man-made fibers: Other." The column one, general rate of duty is 14%. You are instructed to DENY the protest. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at You are to mail this letter together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division