CLA-2 CO:R:C:T 953775 HP
Ms. Cecilia Castellanos
Withrow, Zerwekh
1241 Watson Center Road
Carson, CA 90748
RE: NYRL 865960 revoked. Aqua Swim sweater not sports equipment
nor wearing apparel but other made up textile article.
Dear Ms. Castellanos:
This is further to your letter of June 20, 1991. That
letter concerned the tariff classification, under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), of Aqua
Sweater, produced in Taiwan. Please reference your client ERO
Industries, Inc.
FACTS:
The merchandise at issue, as described in NYRL 865960 of
August 15, 1991, consists of an Aqua sweater swim trainer, ERO
style no. 1082. It is a one piece flotation device consisting of
a rubber inflatable inner tube and a 100% stretch nylon vest and
safety strap. The article functions as a swimming aid providing
buoyancy or flotation support when a child is secured in the
"sweater" and placed in the water.
In NYRL 865960, we classified this merchandise under
subheading 9506.29.0040, HTSUSA, as parts and accessories for
water sports equipment. We have recently addressed this issue,
and have found, as we describe below, that classification within
Chapter 95, HTSUSA, was incorrect.
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.
In HRL 952204 of this date, we ruled that nearly identical
merchandise was classified as other articles of textiles. We
find that to be true in this matter as well. A copy of HRL
952204 is enclosed for your convenience. Should you have any
questions, please contact Mr. Hubbard Volenick, Chief, Textile
Classifications Branch, at (202) 482-7050.
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 NYRL
865960 of August 15, 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 NYRL
865960 (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, NYRL 865960 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 953775 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