CLA-2: OT: RR: CTF: TCM H251142 ERB
Port Director
Port of Minneapolis
U.S. Customs and Border Protection
330 2nd Avenue South, Suite 560
Minneapolis, MN 55401
Attn: Kristi L. Johnson, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 3501-13-100009; Classification of Sliding Short, Catcher’s Sliding Short, and Ultra Martial Arts Padded Short
Dear Port Director:
This is in reference to the Application for Further Review (AFR) of Protest No. 3501-13-100009, timely filed on January 29, 2013, on behalf of EZ-Gard Industries, Inc. d/b/a Shock Doctor, Inc. (Shock Doctor). The AFR concerns the tariff classification of protective sport shorts, specifically baseball and martial arts shorts under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted to this office for analysis and inspection. This office also took into account additional samples and product information provided to this office at CBP’s meeting with Shock Doctor and counsel on October 20, 2014, and follow up email dated October 28, 2014.
FACTS:
This AFR involves five entries of the subject merchandise, entered between November 28, 2011 and February 24, 2012. Four of the entries were liquidated on May 17, 2013, and the fifth entry was liquidated September 14, 2012. Shock Doctor imported the subject merchandise under subheading 9506.99, HTSUS, which provides for, “Articles and equipment for general physical exercise,…other sports…; parts and accessories thereof: Other.” CBP liquidated the subject merchandise under subheading 6114.30, HTSUS, which provides for, “Other garments, knitted or crocheted: Of man-made fibers.”
The subject merchandise are the Ultra Sliding Short with Ultra X-Fit™ Cup Pocket (the sliding short), the Ultra Catcher’s Sliding Short with Ultra X-Fit™ Cup Pocket (the catcher’s sliding short), and the Ultra Martial Arts Padded Short (the martial arts padded short) (also collectively referred to as protective sport shorts). They are all compression shorts constructed of Lycra (polyester and spandex) with various high-frequency polyurethane compression-molded foam pads permanently sewn (“welded”) into the thigh and groin area, and at the hips and buttocks. The padding accounts for roughly 40% of the weight of the sliding short, roughly 50% of the weight of the catcher’s sliding short and roughly 55% of the weight of the martial arts padded short. A separate inside pocket accommodates a hard athletic support cup, imported and sold separately.
ISSUE:
Whether the subject protective sport shorts are 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. 3501-13-100009 is properly accorded to Shock Doctor 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. Specifically, whether specialized undergarments used in sports (specifically, baseball and martial arts) 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 GRIs may then be applied. The HTSUS subheadings under consideration are the following:
6114 Other garments, knitted or crocheted:
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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 “[t]his 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 HTSUS 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, 35128 (August 23, 1989).
The EN to 95.06 states in relevant part:
This heading covers:
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(B) Requisites for other sports and outdoor games …
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(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:
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(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).
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 guides CBP’s analysis and ruling here.
In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1236 (Fed. Cir. 2004), the CAFC addressed the classification of padded sports pants that not only were “specially designed and intended for use only while playing ice hockey,” it “protected the wearer from injury by absorbing and deflecting blows, collisions, and flying objects in areas where serious injury may occur,” because it included “an interior assembly of…hard plastic guards and soft…foam padding” that collectively accounted for “about 80% of the total weight of the hockey pants.” Id at 1248. Thereafter, and in light of the Bauer decision to classify the hockey pants as “sports equipment” of heading 9506, HTSUS, rather than as sports clothing of chapter 61 or 62, imported articles which incorporate a textile component worn on a person while participating in sports, which combines guards and protective padding were evaluated by CBP on a case-by-case basis.
The CAFC revisited these two headings when considering motocross outerwear, jerseys, pants, and jackets, in LeMans Corp. v United States, 660 F.3d 1311 (Fed. Cir. 2011). There the Court observed that while the merchandise was “designed exclusively for use in a particular sport,” id. at 1319, and it contained padding that accounted for up to 50% of the total weight of the jerseys, pants, or jackets, ultimately the motocross merchandise was not akin to the exemplars contained in the ENs, which “are almost exclusively used for protection and would complement, or be worn in addition to, apparel worn for a particular sport.” Id. at 1322. In crafting a standard moving forward, the CAFC concluded, “to the extent ‘sports equipment’ encompasses articles worn by a user, [the exemplars in the EN] are not apparel-like and are almost exclusively protective in nature.” Id. at 1320. [Emphasis added]
Most recently, the CAFC applied the combined standards of the above noted cases to football jerseys, pants, and girdles, in Riddell, Inc. v. United States, 754 F.3d 1375 (Fed. Cir. 2014). The merchandise in Riddell lacked the, “transformative elements that were key in Bauer.” Id at 1380. Given this deficiency, the products had not lost their character as clothing as it is ordinarily understood.
Relevant to this analysis, and raised by Shock Doctor in its submission and in its meeting with this office, the Courts noted an exception, stating, “A narrow exception exists for an item that, as imported, contains a character-transforming amount of material not ordinarily found in mere body-covering clothing that functions to provide forms of protection not inherent in common body coverings, e.g., protection against impacts that readily propagate beneath the skin.” Riddell, supra at 1380. [Emphasis added] However, the subject protective sport shorts do not qualify for this very narrow exception. Similar to the apparel under consideration in Riddell, but even more analogous to the articles under consideration in LeMans, Shock Doctor’s protective sport shorts, which do contain some padding, remain as apparel. It lacks a “character-transforming” element that was key in Bauer Nike, and it does not become “sports equipment” just because it contains some protective padding. See Riddell, Inc. v. United States, supra, at 1381, (“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 [61 and 62].”)
In its submission, and in its meeting with this office, Shock Doctor argued that the baseball protective sport shorts are specially designed and manufactured to protect against targeted blows and abrasions to the body specific to the sport of baseball. However true, the merchandise considered in LeMans Corp. v United States, supra, which included motocross jerseys, motocross jackets and motocross pants, were also found to be designed exclusively for use in a particular sport, id at 1319. Further, the Court recognized that those articles were also padded in locations specific or relevant to the sport of motocross. Nonetheless, the Court held that the merchandise was prima facie classifiable as apparel, and further, chapters 61 and 62 “do not distinguish between apparel designed for general or specific uses,” which is indicated by its inclusion of “track suits, ski-suits[,] and swimwear.” Id at 1317. That is also the case here. While the material and location of the padding may lend the shorts to a particular use, for example, while playing baseball or performing martial arts, it does not cause them to be something other than apparel. They have not been so transformed as to lose their character as “apparel.”
This analysis is consistent with the ENs to 95.06, specifically the protective exemplars in the EN 95.06(B) which includes therein, fencing masks, breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads. These exemplars refer to items worn by a user almost exclusively for protection. They do not include articles that are apparel-like; rather, they are articles that have minimal textile components. They are distinguishable from the protective sport shorts at issue here, and for these reasons, the protective sport shorts are not “sports equipment” within the scope of heading 9506, HTSUS.
Therefore, as the subject protective shorts are covered by Note 1(e) to Chapter 95, they are excluded from classification therein as “sports clothing” of chapter 61 or 62.
HOLDING:
By application of GRI 1, the subject protective sport shorts are classified under heading 6114, HTSUS. They are specifically provided for in subheading 6114.30.30, which provides for, “Other garments, knitted or crocheted: Of man-made fibers: Other.” The column one, general rate of duty is 14.9% ad valorem.
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 www.usitc.gov.
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