CLA-2 CO:R:C:T 952204 HP
Mr. S. Richard Shostak
Stein Shostak Shostak & O'Hara
Suite 1240
3580 Wilshire Blvd.
Los Angeles, CA 90010-2597
RE: HRL 087946 revoked. Swim sweater not sports equipment nor
wearing apparel but other made up textile article.
Dear Mr. Shostak:
This is in reply to your letter of July 13, 1992. That
letter concerned the tariff classification, under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), of
Swimways~ Swim Sweater, produced in Taiwan. Please reference
your client Kransco~.
FACTS:
The merchandise at issue was the subject of a Request for
Further Review of Protest No. 2704-89-002301, embodied in HRL
087946 of December 24, 1991, which instructed the District
Director to deny the Protest. HRL 087946 described the
merchandise as:
an inflatable swimming aid, ... which is
specially designed for use by children ages
2-6. The article is composed of a rubber
inner tube, the flotation chamber, encased in
a stretch nylon case which is firmly attached
to a short nylon sweater. According to the
importer's advertising literature the purpose
of the article is to permit the child to
develop water confidence. It permits the
child to float upright or to try swimming,
providing the appropriate buoyancy under the
body to keep her head out of the water. The
article, according to counsel, provides the
child with freedom to move her arms and legs
through the water. Counsel notes that the
article is not designed to perform a life-
saving function and is not sold for that
purpose; he notes that the packaging
specifically warns parents that the article
should not be used as a lifesaving device.
The quantitative ratio between the
rubber and nylon materials was not provided.
However, the value of that ratio is stated as
being 41 percent to 19 percent in favor of
the rubber.
The protested entries were liquidated under subheading
6307.20.0000, HTSUSA, as lifejackets and lifebelts. You had
argued that classification under heading 4016, HTSUSA, as
inflatable articles of rubber, was more appropriate. HRL 087946
disagreed with both you and the District Director's liquidation,
and classified the articles under subheading 6114.30, HTSUSA, as
other girls' garments.
On January 31, 1992, you requested that formal denial of
Protest No. 2704-89-002301 be withheld pending reconsideration of
HRL 087946. Your request was received by this office on February
5, 1992; denial of the protest, however, was mailed to you by the
District Director on February 6, 1992. We then issued HRL 951101
of February 13, 1992, informing you that, pursuant to San
Francisco Newspaper Printing Co. v. United States, 620 F. Supp.
738 (1985), Customs had no authority to exercise jurisdiction
over a protest after it had been denied. On February 24, 1992,
you wrote this office, agreeing that Customs had no authority
over the denied Protest, but that fundamental fairness and equity
required reconsideration of the classification. Accordingly, you
agreed to abandon your right to judicially contest the denied
Protest if we considered your January 31, 1992, submission as
either a ruling request or a Request for Internal Advice.
On March 6, 1992, with additional submissions on April 1,
1992, and April 26, 1992, you requested both a reconsideration
and a 90-day delay of the effective date of HRL 087946. The
latter request was granted for certain entries in HRL 951295 of
June 26, 1992. On July 13, 1992, you wrote us, stating that you
agreed to drop the right to judicially appeal Protest No. 2704-
89-002301. You also stated that you would greatly appreciate the
reconsideration of the classification issue now. It is this
final matter which is being addressed herein.
ISSUE:
Whether the Swim Sweaters are considered either garments or
other articles of either rubber or textiles under the HTSUSA?
LAW AND ANALYSIS:
Heading 9506, HTSUSA, provides for, inter alia, water sport
equipment and accessories thereof. The Explanatory Notes (EN) to
the Harmonized Commodity Description and Coding System
(Harmonized System) constitute the official interpretation of the
scope and content of the tariff at the international level. They
represent the considered views of classification experts of the
Harmonized System Committee. Totes, Inc. v. United States, No.
91-09-00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916,
1992 Ct. Int'l. Trade LEXIS 158 (Ct. Int'l Trade 1992). While
not treated as dispositive, the EN are to be given considerable
weight in Customs' interpretation of the HTSUSA. Boast, Inc. v.
United States, No. 91-11-00793, slip op. 93-20, 1993 Ct. Int'l.
Trade LEXIS 19 (Ct. Int'l Trade 1993). It has therefore been the
practice of the Customs Service to follow, whenever possible, the
terms of the Explanatory Notes when interpreting the HTSUSA. The
EN to this heading, at 1592, states: This heading covers:
* * *
(B) Requisites for other sports and outdoor
games ..., e.g.:
* * *
(2) Water-skis, surf-boards, sailboards
and other water-sports 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.
It is clear that swimming, whether recreational or
competitive, is a sport insofar as it provides healthy exercise,
recreation, etc. See The Newman Co., Inc. v. United States, 76
Cust. Ct. 143, C.D. 4648 (1976). The swim sweater, however, is
not requisite to the sport of swimming the way that water-skis
are requisite to the sport of water-skiing. It is merely used to
help train children to swim, and is not the type of article
intended to be classified within heading 9506, HTSUSA.
We do not dispute that the imported articles are designed to
be worn and, therefore, fall generally within the class or kind
of articles considered to be wearing apparel. See Arnold v.
United States, 147 U.S. 494, 496 (1892). Nor do we argue that
the term "wearing apparel" does not cover articles worn
essentially for protective purposes. Admiral Craft Equip. Corp.
v. United States, 82 Cust. Ct. 162, C.D. 4796 (1979) (plastic
lobster bibs are wearing apparel). However, all things worn by
humans are not necessarily wearing apparel. See Dynamics
Classics, Ltd. v. United States, Slip. Op. 86-105, 10 C.I.T. 666
(Oct. 17, 1986) (plastic suits used for weight reduction
inappropriate for wear during exercise or work not wearing
apparel); Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D.
2006 (1958) (crash helmets not wearing apparel); Best v. United
States, 1 Ct. Cust. Appls. 49, T.D. 31009 (1910) (ear caps for
prevention of abnormal ear growth not wearing apparel).
Admiral Craft Equipment, supra, developed the standard that
items are not considered wearing apparel when the use of those
items goes "far beyond that of general wearing apparel." Daw
Industries, Inc. v. United States, 714 F.2d 1140 (Fed. Cir. 1983)
(sheaths and socks used exclusively with protheses do not provide
"significantly more, or essentially different," protection than
analogous articles of clothing, but merely "differ
incrementally"). The Daw reasoning is applicable to this matter.
While the swim sweater may provide some protection from the
elements, and may even be said to adorn the body (see Antonio
Pompeo, supra (the term wearing apparel includes articles worn
for decency, comfort or adornment)), it is exclusively used in
very specific situations. The increment in the difference in use
and effect between this article and a conventional sweater is so
large that we must conclude that the swim sweater is no longer
wearing apparel.
Heading 4016, HTSUSA, provides for articles of vulcanized
rubber. Heading 6307, HTSUSA, provides for other articles of
textiles. Since the swim sweater is no longer provided for eo
nomine as wearing apparel, we must now determine whether it is
classifiable as an article of rubber or textile.
The General Rules of Interpretation (GRIs) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part, that such "classification shall be
determined according to the terms of the headings and any
relative section or chapter notes. . . ." Note 2(a) to Chapter
40, HTSUSA, excludes from classification therein "[g]oods of
section XI (textiles and textile articles). It follows,
therefore, that if the swim sweater is considered a "good of
section XI," it is classifiable as an other article of textiles.
Neither the HTSUSA nor the Explanatory Notes aid us in
determining what is meant by "of textiles." In our early screen
house rulings (see, e.g., HRL 085550 of December 8, 1989), we
held that if the textile portion imparted a significant
characteristic to the tent, the tent would consequently be deemed
a textile article. This finding was based in part upon General
Note 7(e) to the HTSUSA, which defined, inter alia, "in part of"
or "containing" as containing "a significant quantity of the
named material." Emphasis added. Since an article "of textiles"
clearly contains at least as much textile as an article "in part
of" textiles, and less than an article "wholly of" textiles, a
textile portion which imparts a significant characteristic must
therefore be of a significant quantity.
We have since modified this rationale. See HRL 089449 of
February 10, 1992. Since the term "of", as it is used in the
legal notes, is not specifically defined in the tariff schedule
or its accompanying Explanatory Notes, it is our opinion that
reference to the subsequent GRIs is appropriate to determine the
intent of the drafters. Therefore, in an analysis of whether an
article is "of" a particular material, that material which
imparts upon the good its essential character is the material of
which the article is constructed.
GRI 3 states, in pertinent part:
When by application of Rule 2(b) [goods of
more than one material or substance] or for
any other reason, goods are, prima facie,
classifiable under two or more headings,
classification shall be effected as follows:
* * *
(b) Mixtures, composite goods consisting of
different materials or made up of
different components, . . . which cannot
be classified by reference to 3(a)
[which requires that goods be
classified, if possible, under the more
specific of the competing provisions],
shall be classified as if they consisted
of the material or component which gives
them their essential character, insofar
as this criterion is applicable.
Explanatory Note (IX) to GRI 3 provides:
* * *
[C]lassification [of composite goods] is made
according to the component, or components
taken together, which can be regarded as
conferring on the set as a whole its
essential character.
The factors which determine essential character of an
article will vary from case to case. It may be the nature of the
materials or the components, its bulk, quantity, weight, value,
or the role a material plays in relation to the use of the goods.
In general, essential character has been construed to mean the
attribute which strongly marks or serves to distinguish what an
article is; that which is indispensable to the structure or
condition of an article.
The outer shell of nylon encloses the rubber tube and forms
the means of attachment to the swimmer. Although you state in
your January 31, 1992, submission that the nylon covering merely
permits the tube to stay in place when the child turns upside
down in the water, we find this to be quite a vital attribute.
The inflated tube supports the swimmer in his or her effort to
stay afloat. It represents 68% of the value of the swim sweater,
and predominates by weight. Both are indispensable. It is our
opinion, therefore, that neither component imparts to the swim
sweater its essential character.
GRI 3(c) states that when "[g]oods cannot be classified in
accordance with the above rules[, such goods] shall be classified
under the heading which occurs last in numerical order among
those which equally merit consideration." Since the heading for
articles of textiles occurs after the heading for articles of
rubber, the swim sweater is considered "of textiles." The legal
note exclusion from Chapter 40, HTSUSA, is applicable.
Accordingly, HRL 087946 is revoked. In addition, NYRL 865960 of
August 15, 1991, and NYRL 847502 of December 15, 1989, no longer
represent the position of the Customs Service. The recipients of
these rulings will be notified in a timely manner.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 6307.90.9986, HTSUSA, as other made
up textile articles. The applicable rate of duty is 7 percent ad
valorem.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are revoking HRL
087946 of December 24, 1991, pursuant to 19 C.F.R. 177.9(d)(1),
to reflect the above classification effective with the date of
this letter. This letter is not to be applied retroactively to
HRL 087946 (19 C.F.R. 177.9(d)(2)) and will not, therefore,
affect the transaction for the importation of your merchandise
under that ruling. However, for the purposes of future
transactions in merchandise of this type, including that for
which the present classification is requested, HRL 087946 will
not be valid precedent. We recognize that pending transactions
may be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to the
release of HRL 952204 will be classified under the new ruling.
If such a situation arises, you may, at your discretion, notify
this office and apply for relief from the binding effects of the
new ruling as may be dictated by the circumstances. However,
please be advised that in some instances involving import
restraints, such relief may require separate approvals from other
government agencies.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division