CLA-2 CO:R:C:T 951357 jb
TARIFF: 6113.00.0084; 6113.00.0086; 6114.30.3060
Duncan A. Nixon, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
1707 L Street, N.W.
Washington, D.C. 20036
RE: Request for reconsideration of NY 870764; neoprene shorts;
garments, subheading 6113.00.0084, and 6113.00.0086, HTSUSA
Dear Mr. Nixon:
This is in response to your letter dated March 12, 1992, on
behalf of your client, Dynamic Classics, Ltd., requesting
reconsideration of NY 870764, dated February 20, 1992, concerning
the classification of neoprene shorts designed to be used in
conjunction with exercise. Samples were provided. Our response
follows.
FACTS:
The original sample, for which reconsideration of NY 870764
is requested, was described as a pair of men's neoprene shorts
constructed of an outer surface of knit pile construction, an
inner layer of neoprene rubber, with seams covered on the outside
and a decorative half inch binding. In that ruling four style
numbers were cited: two for men (styles 876 and 877) and two for
women (styles 878 and 879). It should be noted that in NY ruling
870764 the style numbers were reversed for men and women. At the
time of the original request, it was believed that the submitted
sample was representative of all styles. This is not the case.
The instant samples, submitted with the request for
reconsideration of NY 870764, consist of men's styles 876 and 877
and women's styles 878 and 879. The shorts are constructed from
an expanded synthetic rubber (neoprene) laminated on both the
inside and the outside surface to nylon knit fabrics. Both the
original sample and the instant samples are produced in Taiwan.
Since the time of the original request for reconsideration,
Dynamic Classics has ceased manufacturing the neoprene shorts of
knit pile construction (the sample submitted in NY 870764). All
such merchandise is now constructed of the nylon knit fabric. As
such, this ruling will concern itself primarily with the
"updated" samples.
You assert that the submitted articles are not true
"garments". Accordingly, classification should fall either in
heading 6307, HTSUSA, which provides for other made up textile
articles, or in chapter 40, HTSUSA, which provides for rubber and
articles thereof.
ISSUE:
Whether the subject merchandise are classifiable as garments
in heading 6113, HTSUSA, or in the alternative, other made up
articles of heading 6307, HTSUSA, or as articles of rubber of
chapter 40, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), is governed by
the General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined in accordance with the terms of the
headings of the tariff and any relative section or chapter notes.
Where goods cannot be classified solely on the basis of GRI 1,
the remaining GRI's will be applied in the order of their
appearance.
You state that classification of the shorts under HTSUSA is
mandated by the holding of the Court of International Trade in
Dynamic Classics, Ltd. v. United States, 10 CIT 66 (1986). That
case involved an exercise suit of polyvinyl material which the
importer maintained was not chiefly worn for purposes of decency,
comfort and/or adornment, but rather to seal in body heat and
promote weight loss through perspiration. In support of this
argument, the importer relied on the definition of "wearing
apparel" enunciated by the Court in Antonio Pompeo v. United
States, 40 Cust. Ct. 362, C.D. 2006 (1958), which stated the term
"wearing apparel" is limited to articles used as a covering or a
protection against the elements, or as items of personal comfort
or adornment.
In Dynamic Classics, the court determined that though the
exercise suit could be considered to provide protection from the
elements, decency to the wearer and adornment for the body, it
was chiefly used as a weight loss device and therefore not
classifiable as wearing apparel, but as articles not specifically
provided for, of plastics. You state that this reasoning is
directly on point as to the submitted exercise shorts.
Your arguments can be summarized as follows:
1. Though the above cited cases are based on the Tariff
Schedules of the United States Annotated (TSUSA), you
state they are still applicable under the HTSUSA because
Chapters 61 and 62 of the HTSUSA encompass the same
products as the TSUSA provisions for wearing apparel.
2. You refer to HQ 089581 of November 4, 1991, which held
that an exercise belt made of a similar neoprene nylon
material was not a "clothing accessory" because it did
not adorn or accent clothing and because it was used in
conjunction with exercise for weight loss.
3. You argue that the marketing of Dynamic Classics'
supports classification under heading 6307, HTSUSA, as
the exercise shorts are advertised and sold as weight
reduction devices and not apparel.
First, though the principles and definitions cited under
Dynamic Classics and Antonio Pompeo are not irrelevant, they must
be considered in conjunction with the changes brought about by
the implementation of the HTSUSA. Antonio Pompeo defined the
term "wearing apparel" to include articles worn by human beings
for "decency, comfort, or adornment" but not to include articles
worn for "protection against the hazards of game, support,
occupation, or protection against injury." Thus, under TSUSA
items such as firemen's turnout clothing, heat-reflective
clothing and bomb suits were not classifiable under the wearing
apparel provisions of Schedule 3, TSUS, but under other residual
provisions providing for other articles not specially provided
for, of textile materials, or in Schedule 7, TSUS, under the
provisions for sports equipment (e.g., padded hockey pants,
motorcross pants, etc.).
Since that time, HTSUSA has expanded the items classifiable
as wearing apparel to include items previously excepted under
those provisions, namely, flight suits, anti-radiation suits,
certain protective sports clothing, fire protection suits, etc.
As was stated in HQ 088542, dated May 1, 1992, concerning
similar merchandise:
Garments may be worn for reasons of comfort, decency or
adornment. Further, all garment-like articles may not be
classifiable as garments. However, the headings of chapter
61, HTSUSA, and headings 6113 and 6114 in particular,
include a wide variety of goods classified as garments:
overalls, coveralls, raincoats, divers' suits, anti-
radiation suits, boiler suits, protective clothing,
specialized clothing for airmen, and special articles used
for sports. Many articles classifiable as garments do not
fall neatly within the "decency", "comfort" or "adornment"
limitations to which Protestant would restrict us. They
are, however, undeniably classified as garments under the
scheme of the HTSUSA...
While reference is made to the exercise suit decision of
Dynamic Classics, a subsequent relevant ruling, HRL 081785, dated
March 17, 1989, is ignored. In the latter decision, sauna shorts
and belts made of nylon bonded to neoprene rubber, designed to
promote weight loss, were classified under subheading
6113.00.0085, HTSUSA, a provision for other men's garments made
up of knitted fabric of heading 5906, or under subheading
6113.00.0090, HTSUSA, if women's. Thus, shorts, similar to the
submitted merchandise were classified under the provision for
wearing apparel.
Secondly reference is made to HRL 089581 in which a neoprene
exercise belt was classified as a made up article of textile in
heading 6307, HTSUSA, rather than as a made up clothing accessory
of heading 6117, HTSUSA.
That ruling turned on the definition of a clothing
accessory, which is not clearly defined by section and chapter
notes. The ruling concluded that
"an accessory must relate to or exhibit some nexus with the
primary article... an accessory must be intended for use
solely or principally as an accessory. Articles of heading
6117 are used to enhance, adorn, or compliment articles of
clothing. Articles used principally for other purposes are
not classified in heading 6117."
As that ruling addressed itself only to clothing accessories, it
is extraneous to the argument in this case.
Also not convincing is the argument that classification
under heading 6307, HTSUSA, is supported by the fact that the
exercise shorts are advertised, sold and are to be used as weight
reduction devices and not apparel. HQ 088542 stated:
...where the scope of the provision is clear, use may
indicate consideration of the goods for inclusion in that
provision, but it is not dispositive. Protestant suggests
that "the ultimate test of whether an article is wearing
apparel depends on its use", citing Dynamic Classics, Ltd.
v. United States, 10 CIT 66 (1986). The Dynamics Classics
court specifically stated that the parties to the action
agreed that use was the appropriate test, without endorsing
such a conclusion. Further, the Dynamics Classics decision
was rendered under a prior, and different, tariff schedule.
We do not agree in this case that use is the ultimate test.
Heading 6307, HTSUSA, provides for other made up textile
articles. This heading is a "basket" provision intended to
classify merchandise not provided for more specifically in other
headings of the Nomenclature (See, for example, NY 868264, dated
November 19, 1991, regarding neoprene sauna belts and HQ 950470,
dated January 7, 1992, regarding a neoprene elbow warmer). In the
case at hand, heading 6307, HTSUSA, is not the most appropriate
applicable heading as other headings describe the merchandise.
While the garment may be marketed and sold as an exercise device
and may promote weight loss through perspiration expended during
exercise routines, it is provided for in the chapter in HTSUSA
encompassing knitted or crocheted garments.
Chapter 61, HTSUSA, covers articles of apparel and clothing
accessories, knitted or crocheted. Heading 6113, HTSUSA, applies
to garments made up of knitted or crocheted fabrics of heading
5903, 5906 or 5907. The textile covered neoprene shorts are made
from fabric that is classifiable in heading 5906, which provides
for rubberized textile fabric, other than those of heading 5902.
As was outlined in HQ 089581, neoprene is a synthetic
cellular rubber containing tiny bubbles of gas. The bubbles give
the rubber insulating qualities desirable in certain articles. A
textile fabric has been laminated to the cellular rubber. The
textile acts not only as a reinforcing material for the neoprene,
but also provides an attractive exterior surface and a
comfortable interior to the item.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), constitute the official
interpretation of the tariff at the international level. It has
been the practice of the Customs Service to follow, whenever
possible, those terms when interpreting the HTSUSA. Chapter Note
4(d) to Chapter 59, HTSUSA, states:
4. For the purposes of heading No. 59.06, the expression
"rubberised textile fabrics" means:
(d) Plates, sheets or strip of cellular rubber, combined
with textile fabric, where the textile fabric is more
than mere reinforcement, other than textile products
of heading No. 58.11 (emphasis added)
In accordance with the EN to Chapter 59, HTSUSA, sheets or
strip of cellular rubber combined with a textile which is more
than mere reinforcing are "rubberized textile fabrics" for
classification purposes. Articles made from the instant textile
and neoprene rubber material are considered textile articles and
are included under Chapter 61 (See NY 859239, dated January 22,
1991, NY 864231, dated July 2, 1991 and HQ 950562, dated January
9, 1992, for similar articles classified under Chapter 61).
In the instant case, the function of the textile portion of
the neoprene shorts goes beyond that of "mere reinforcement".
The garments feature the textile portion not only on the outside
surface but also on the interior portion, facing the skin of the
wearer. Thus,:
1. the colored textile portion featured on the outside
surface of the garment enhances the aesthetic
appeal of the shorts; and
2. the textile portion featured on the inside provides
comfort to the wearer and allows the garment to be put
on and taken off without undue difficulty
The specific subheading in Chapter 61 that applies turns on
which sample is being discussed. The garment submitted in NY
870764 was referred to as "consisting of nylon fabric having a
knit pile construction". Note 7 to Chapter 61, HTSUSA states:
Garments which are, prima facie, classifiable both in
heading 61.13 and in other headings of this Chapter ,
excluding heading No. 61.11, are to be classified in heading
No. 61.13
The wording of heading 6113 must first be examined to determine
if it is in fact, a competing provision.
Heading 6113 provides for garments made up of knitted or
crocheted fabrics of heading 5903, 5906 or 5907. If a garment is
not constructed of fabric of those headings, it cannot be
classified within that provision. Chapter 60 includes knitted or
crocheted pile fabrics. Chapter Note 1(c) to Chapter 60, HTSUSA,
states:
This Chapter does not cover:
(c) Knitted or crocheted fabrics, impregnated, coated,
covered or laminated of Chapter 59. However, knitted or
crocheted pile fabrics, impregnated, coated, covered or
laminated, remain classified in heading 6001.
Therefore, by application of the EN, the neoprene shorts
submitted in NY 870764 are precluded from classification under
heading 6113, as they are not composed of fabric under heading
5903, 5906 or 5907, but consist of knit pile construction. As
such, Note 7 to Chapter 61, HTSUSA, also does not apply to the
men's shorts of NY 870764 because the garment is not prima facie
classifiable under heading 6113.
The EN to heading 6114 state:
This heading covers knitted or crocheted garments which are
not included more specifically in the preceding headings of
this Chapter.
The heading includes interalia:
(5) Special articles of apparel used for certain sports or
for dancing or for gymnastics (e.g., fencing clothing,
jockeys' silks, ballet skirts, leotards).
Accordingly. heading 6114 is preferred to a heading under
Chapter 60 as the former specifically provides for special
articles of apparel used for certain sports.
The instant samples on the other hand, submitted with the
request for reconsideration of NY 870764, pose a different
situation. Styles 876, 877, 878 and 879 do not have a knit pile
construction but a surface of nylon knit fabric. Thus,
classification is accorded in heading 6113, HTSUSA.
As classification of the shorts has already been determined
under heading 6113, HTSUSA, there is no reason to discuss Chapter
40, HTSUSA, as a possible classification alternative. We will
add however, that though HQ 950048, dated March 2, 1992, to which
you referred, does state that whether a textile component is
present merely for reinforcing purposes is a question of fact,
that ruling also goes on to say that "our experience with
materials similar to that at issue indicates that most textiles
serve some reinforcing purpose when combined with plastics,
although they may also have other functions". Emphasis added.
HOLDING:
The men's shorts constructed of knit pile fabric submitted
with the original request for reconsideration, are correctly
classifiable under heading 6114.30.3060, HTSUSA, which provides
for men's or boys' other garments, knitted or crocheted, of man-
made fibers. The applicable rate of duty is 16.1 percent ad
valorem. The textile category designation is 659.
The subsequent submitted samples, Styles 876 and 877, are
classifiable in subheading 6113.00.0084, HTSUSA, which provides
for other men's garments, made up of knitted or crocheted fabrics
of heading 5903, 5906, or 5907. Styles 878 and 879, are
classifiable in subheading 6113.00.0086, HTSUSA, which provides
for other women's garments, made up of knitted or crocheted
fabrics of heading 5903, 5906, or 5907.
The applicable rate of duty for both the men's and women's
garments is 7.6 percent ad valorem and the textile category
designation is 659.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent negotiations and
changes, to obtain the most current information available, we
suggest that your client check, close to the time of shipment,
the Status Report on Current Import Quotas (Restraint Levels), an
issuance of the U.S. Customs Service, which is updated weekly and
is available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division