CLA-2 CO:R:C:T 087946 JS
District Director
U.S. Customs
300 S. Ferry Street
Terminal Island
Room 2017
San Pedro, CA. 90731
RE: Request for further review of protest 2704-89-002301;
inflatable swim aids known as swim sweaters
Dear Sir:
This is a determination on a protest timely filed by Stein
Shostak Shostak & O'Hara, on behalf of their client, Kransco
Manufacturing, Inc., against your decision on the classification
of inflatable swimming aids.
FACTS:
The article at issue is an inflatable swimming aid, known as
a swim sweater, 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 the 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 is not provided. However, the value of that ratio is
stated as being 41 percent to 19 percent in favor of the rubber.
2
The relative entries were liquidated under subheading
6307.20.0000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as other made up articles, lifejackets and
lifebelts. Counsel, in a memorandum supporting its application
for further review, noted that the subject article is not
designed to perform as a lifesaving device and is not sold for
such purposes. Counsel states that the swim sweater should be
classified under subheading 4016.95.00, as other inflatable
articles of rubber pursuant to General Rule of Interpretation
(GRI) 3(b), which calls for articles consisting of different
materials or made up of different components to be classified as
if they consisted of the material or component which gives them
their essential character.
You have indicated that you agree with the importer's
position that the swim sweater should not be classified under the
provision for lifejackets. You expressed the belief that neither
the rubber inflatable portion nor the stretch nylon portion
provides the essential character of the article. You also noted
that while the inflatable portion of the article is necessary to
provide buoyancy and flotation, the sweater portion, which holds
the inflatable tube against the child, is necessary for the item
to be used and that, without it, the tube would have no
discernable function. Classification is therefore deemed
appropriate under subheading 6307.90.9050, as other made up
articles pursuant to GRI 3(c).
ISSUE:
What is the proper classification of an article known as a
swim sweater, which is composed of rubber and textile and is
intended to be used as a swimming aid for young children.
LAW AND ANALYSIS:
The competing headings in this instance are heading 4016
(other articles of vulcanized rubber), heading 6114 (other
knitted or crocheted garments), and heading 9506 (articles and
equipment for gymnastics, athletics, other sports...or outdoor
games...; swimming pools and paddling pools).
We agree with the importer that the article is not a
lifesaving device. We do not agree, however, that the essential
character of the article is the rubber component and that it
should be classified as an article of rubber under GRI 3(b). As
previously noted, the article could not be used for the intended
purpose without both components. Thus, on the basis of GRI 1
alone, both heading 4016 and 6114, at least, are prima facie
applicable. However, Chapter 40 Note 2(a) excludes goods of
3
Section XI, and heading 6114 describes this article in so far as
it is a knit garment not more specifically provided for elsewhere
in Chapter 61. Heading 4016 is therefore eliminated from
consideration.
The intended use of the article as an instructional device
for young swimmers leads us to consider heading 9506, which
provides for sports articles and equipment, including those used
in water sports. Chapter 95 Note 1(e) excludes sports clothing,
of textiles, of Chapter 61 or 62, from the articles covered by
Chapter 95. Therefore, for the same reasons that Chapter 40
Note 2(a) disqualified consideration of heading 4016, the
exclusion of sports clothing from Chapter 95 serves to dismiss
heading 9506 as a possible classification. The article at issue
is made up, in significant part, of a sweater, which qualifies it
as an article of heading 6114. Explanatory Note B(13) of heading
9506, which includes protective equipment for sports or games,
e.g., fencing masks and breast plates, elbow and knee pads,
cricket pads, and shin pads, does not resurrect the possibility
of including the item at issue in face of Note 1(e).
The classification you suggest, heading 6307, fails in light
of the greater specificity provided by heading 6114, HTSUSA,
which describes articles that may be worn.
HOLDING:
This merchandise is properly classified under subheading
6114.30.3070, HTSUSA, which provides for other garments, knitted
or crocheted: of man-made fibers: other, other: women's or
girls', textile category 659, dutiable at the rate of 16.1
percent ad valorem.
You are instructed to deny the protest, except to the
extent reclassification of the merchandise as indicated above
results in a partial allowance.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division