CLA-2 CO:R:C:T 088542 KWM
TARIFF: 6113, 6114, 6404, 6505, 6116
Ms. Diane A. Zwicker
District Director of Customs
United States Customs Service
4430 East Adamo, Suite 301
Tampa, Florida 33605
RE: Protest 1801-89-000023; Protest denied; Wetsuits; Neoprene;
Diving suits; sports equipment; use; garment; sports
clothing; headgear; footwear.
Dear Ms. Zwicker:
This protest was filed against your decision in the
liquidation of three entries of goods described as wetsuits
manufactured in St. Lucia, West Indies. For the reasons below,
we find that the protest should be DENIED.
FACTS:
Three entries are at issue: two dated January 18, 1989, and
liquidated on May 5, 1989, and one dated January 31, 1989, and
liquidated March 24, 1989. The protest was timely filed on June
5, 1989, and qualifies for further review under Section 174.24 of
the Customs Regulations.
Several submissions have been made by counsel for the
importer, and a meeting was held with representatives of the
Customs Service on September 30, 1991. At the September 30,
1991, meeting samples were provided for inspection.
The merchandise at issue is described as "wetsuits", which
are garments used while engaged in water sports activities. The
wetsuits in question are made from a neoprene and textile
laminate, which consists of a layer of neoprene rubber
"sandwiched" between two layers of textile. The composite
material serves to insulate the body by allowing a thin layer of
water between the interior surface of the suit and the wearer's
skin. When the body and the water layer reach an equilibrium
temperature, heat loss is reduced.
The invoices of each entry describe different styles of
wetsuits: the "short", the "farmer pant" and the "jumpsuit",
each of which covers the body to one extent or another. In
addition, the supporting documents indicate that two types of
material are used. The first is called "Sea-flex" and consists
of a neoprene rubber layer to which knit fabric has been
laminated on both the interior and exterior surfaces. The second
is called "Durasoft", and is similar in construction except that
a plush or pile material is present on the interior surfaces.
The protest also include neoprene/textile laminate footgear,
headgear and gloves, each made from materials similar or
identical to the wetsuits.
ISSUES:
Are all of the articles classified as sports equipment of
heading 9506, HTSUSA, as suggested by the Protestant, or are they
classified in separate headings, each providing for a particular
class of goods?
LAW AND ANALYSIS:
A. Headings under consideration
1. Protestant suggests that heading 9506, HTSUSA, provides for
all of the protested merchandise:
9506 Articles and equipment for
gymnastics, athletics, other sports
. . . or outdoor games, not
specified or included elsewhere in
this chapter; . . .
* * *
Water sports, surfboards,
sailboards and other water-
sports equipment; parts and
accessories thereof:
2. The port of entry classified the wetsuits under either
heading 6113, or 6114, HTSUSA:
6113 Garments, made up of knitted or
crocheted fabrics of heading 5903,
5906 or 5907:
Having an outer surface
impregnated, coated, covered
or laminated with rubber or
plastics material which
completely obscures the
underlying fabric: . . .
for garments made of the "Sea-flex" material, which would be
classified under heading 5906, HTSUSA, as a "rubberized
textile fabric" as provided by Legal Note 4 to Chapter 59,
HTSUSA. Additionally,
6114 Other garments, knitted or
crocheted:
for garments made from the "Durasoft" material, which would
be classified in heading 6001, HTSUSA, by operation of Legal
Note 1(c) to Chapter 60, HTSUSA, which provides that
laminated pile fabrics are classified in heading 6001,
HTSUSA.
3. The remaining merchandise, footwear, headgear, and gloves
were classified in, respectively:
6404 Footwear with outer soles of rubber,
plastics, leather or composition leather
and uppers of textile materials:
6505 Hats and headgear, knitted or crocheted,
or made up from lace, felt or other
textile fabric . . .
6116 Gloves, mittens and mitts, knitted or
crocheted:
B. Mutually exclusive Legal Notes to Chapters 61 and 95, HTSUSA
Counsel asserts, and we agree, that the operation of the
Legal Notes to Section XI, HTSUSA, and Chapter 95, HTSUSA, serve
to mutually exclude from classification by GRI 1, in either
chapter, merchandise which is classified in the other. In other
words, articles of Chapter 61, HTSUSA, cannot be classified in
Chapter 95, HTSUSA, by operation of Legal Note 1(t) to Section
XI, HTSUSA, and vice versa, by Legal Note 1(c) to Chapter 95,
HTSUSA.
C. Heading 9506, Articles and Equipment for Sports
A central question to this protest is the scope of heading
9506, HTSUSA. In determining the scope of the heading, Customs
looks to the language of the tariff, in this case providing for
"articles and equipment" for sports. In almost every case
Customs consults the Explanatory Notes to the HTSUSA, which
provide insight into the intended scope of a heading. The
Explanatory Notes represent the official interpretation of the
tariff at the international level, and are the best source for
inquiring into a heading's scope.
Specifically, the Explanatory Notes to heading 9506, HTSUSA,
indicate that the heading includes, inter alia:
(B) Requisites for other sports and outdoor games . . .
e.g.:
(2) Water-skis, surf-boards, sailboards and other
water sport 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 and divers.
* * *
(13) Protective padding for sports games, e.g., fencing
masks and breast plates, elbow and knee pads,
cricket pads and shin-guards.
The heading excludes:
(c) Sports gloves (generally heading 42.03).
(e) Sports clothing of textile materials, of Chapter 61 or
62.
(g) Sports footwear (other than ice or roller skating boots
with skates attached) of Chapter 64 and sports headgear
of Chapter 65.
(k) Frogmen's and other goggles (heading 94.04).
Emphasis added. The Explanatory Notes indicate, in our opinion,
that Chapter 95 is limited to "apparatus and appliances", and
that clothing or other garments are excluded. Sports clothing,
regardless of any protective features indicating it is designed
specifically for a particular sport, is excluded from Chapter 95,
HTSUSA, with no exceptions. Legal Note 1(e) to Chapter 95,
HTSUSA.
Protestant argues that wetsuits should be considered
"equipment" of heading 9506. Protestant argues that we should
apply a definition of "sports equipment" based on the goods'
function which in turn is derived from their intended use. In
effect, 9506, HTSUSA, would become a "use" heading. We do not
believe any functional distinctions found among the goods of
heading 9506, HTSUSA, or any other heading, lead to its
consideration as a "use" provision. A general material versus
function distinction among the headings of the HTSUSA, does not
equate to designation of function related headings to use
provisions. While use may properly be considered in identifying
goods for consideration of an eo nomine provision, it should not
be a criterion for classification where the provision is clear in
its scope. (F.W. Myers & Co., v. United States, 24 Cust.Ct. 178
(1950) and United States v. Quon Quon Company, 46 CCPA 70, C.A.D.
(1959)). Customs considers heading 9506, HTSUSA clear in scope.
Use may be a consideration, but it is not dispositive. When, as
in this case, the goods are not otherwise eligible for inclusion
even in a function related heading, they are not classified
therein.
Viewing heading 9506, HTSUSA, as an eo nomine, provision, we
have considered the wetsuits at issue. Protestant urges
classification as "other water-sport equipment", the scope of
which found in part among the more specific items named elsewhere
in the heading. Protestant argues that wetsuits are similar
articles: wetsuits are designed for use in a sport, and are
required for use in that sport. Design intent and/or
requirement(s) for participation are not considered dispositive
of classification. The term "equipment" describes a particular
type of good. The exemplars provided by the tariff include skis,
surfboards, skates, balls, and rackets, and those provided by the
Explanatory Notes include diving platforms, flippers, and
snorkels, all of which are clearly appliances or apparatus for
use in sports. Certain items, such as sports footwear or sports
headgear, are specifically excluded from heading 9506, HTSUSA,
despite special design features. Design intent does not equate
with classification as equipment. In this case, protestant's
arguments that the wetsuits are design for use while diving
indicate only that a "sport" activity may be involved.
Customs has classified within heading 9506, HTSUSA, certain
articles which protect or pad persons from the shock of blows,
such as fencing masks or equestrian body protectors. This does
not extend to textile garments worn while engaged in a sport,
such as fencing suits or racing silks, or other more ordinary
sports clothing which may also be required for participation or
competition in sports activities. Evidence that an article is
required is a factor in establishing that it is protective. We
find that the "requirement" of a wetsuit does not bring it within
the scope of protective equipment. The protective equipment
exemplars of heading 9506, HTSUSA, are goods clearly distinct
from wetsuits. Protestant further argues that wetsuits are not
worn by divers except while diving; they are uncomfortable for
wear out of the water. We find that bulkiness and comfort are
relevant only to the extent that they distinguish protective
clothing. A distinction exists among the headings of the
nomenclature between clothing (including protective clothing) and
protective equipment. The nomenclature clearly anticipates the
distinction we have drawn: that sports clothing and sports
equipment are provided for in different tariff provisions.
The wetsuits in question are used for water-sport
activities; their design evidences that such is the intended use.
However, intended use and physical design features indicate to
us only that a nexus exists between the goods and sporting
activities. They do not dictate classification as "equipment" as
Protestant argues. Further, any requirement which may exist for
their use tends to indicate only that they are protective in
nature, and not that they are "equipment." Heading 9506, HTSUSA,
provides for appliances or apparatus, "equipment" in the language
of the tariff, a type of good distinct from garments such as
these. We find that the wetsuits are therefore not classifiable
in heading 9506, HTSUSA.
D. Headings 6113 and 6114, HTSUSA
Protestant argues that wetsuits are not worn for purposes
of decency, comfort or adornment. Hence, they cannot be garments
or sports clothing. In addition, protestant argues that
classification as equipment precludes classification as sports
clothing. We have determined above that we do not consider the
wetsuits classifiable as sports equipment. Therefore, we have
considered classification as garments in headings 6113 and 6114,
HTSUSA.
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 article 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. We find that wetsuits are also so classified.
Like other exemplars of headings 6113 and 6114, wetsuits are
specialized articles of sports clothing. The presence of
protective features does not preclude classification as a
garment; protective clothing is provided for as garments.
Protestant's arguments that limitations on use and restraint of
movement are also unpersuasive. Like other types of protective
clothing, we do not consider it unusual that wetsuits are not the
most comfortable garments or may be limited to specific sporting
activities.
Protestant also returns to use as the determining factor in
our analysis. We do not agree. As we stated above, 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 suggest that "the ultimate test of
whether an article is wearing apparel depends on its use", citing
Dynamics Classics, Ltd. v. United States, 10 CIT 666 (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.
We find that use of a wetsuit during a sports activity
indicates that it may be an article of sports clothing. Further,
even if we accept protestant's argument that the wetsuit is not
worn for "decency, comfort or adornment", we are not persuaded
that such a limitation on use precludes classification as a
garment or sports clothing. The "garment" headings of chapter
61, HTSUSA, provide for certain types of goods, and we find that
wetsuits are classifiable as protective sports clothing of
chapter 61, HTSUSA.
E. GRI 4
General Rule of Interpretation 4 provides that:
Goods which cannot be classified in accordance with the
above rules shall be classified under the heading
appropriate to the goods to which they are most akin.
Assuming, arguendo, that protestant correctly argues that the
wetsuits are described by the terms "sports equipment", we
believe that two headings may describe the goods although both
headings cannot prima facie classify the goods since the legal
notes are mutually exclusive, as noted above. Therefore, GRI's 1
through 3 direct us to two headings whose terms describe the
wetsuits but whose applicable legal notes exclude the other from
consideration. The headings describe goods not classifiable by
"the above rules." In the case, assuming that both headings
describe the goods, we believe that the garments headings provide
for products which are most akin to wetsuits. Wetsuits are
fitted to cover the body, as are ski suits or coveralls. They
have protective features as do radiation suits or airmen's
clothing. They are sized and manufactured like other garments.
Wetsuits are not the same as the equipment found in heading 9506,
HTSUSA. They are not akin to water skis, surfboards, etc.
Therefore, even if we were to accept Protestant's arguments that
the wetsuits were equipment, we would not agree that such a
finding necessarily excludes consideration of the garment
headings. Considering the similarities among the various
exemplars, we would still classify the wetsuits as garments.
F. Footwear, Headgear and Gloves
By an analysis parallel to that described above, footwear,
headgear and gloves made from neoprene/textile laminate and
designed for use in a water-sport activity are not classifiable
as "water-sports equipment", but are classifiable as sports
footwear, sports headgear and sports gloves, respectively.
HOLDING
The protest should be DENIED in full.
All styles of the wetsuits, regardless of the extent to
which they cover the wearer's body, are classified as garments in
chapter 61, HTSUSA. Wetsuits made from the "Sea-flex" material,
have a knit or crocheted fabric laminated to both sides of the
neoprene rubber, are classified in heading 6113, HTSUSA.
Wetsuits made from the "Durasoft" material, having a plush or
pile material laminated to the interior surface are classified in
heading 6114, HTSUSA,
Footwear manufactured from both type of neoprene/textile
laminate are classified in heading 6404, HTSUSA.
Headgear manufactured from both types of neoprene/textile
laminate are classified in heading 6505, HTSUSA.
Gloves manufactured from both types of neoprene/textile
laminate are classified in heading 6116, HTSUSA.
A copy of this decision should be attached to the CF 19,
notice of action, to be provided to the protestant.
Sincerely,
John A. Durant, Director