RR:CTF:FTM H329396 BJK
Mr. Scott R. Darling
Giant Fish
2864 SW Champlain Drive
Portland, OR 97205
RE: Tariff classification of Paddling Apparel from Thailand
Dear Mr. Darling:
This is in response to your request, on behalf of Giant Fish, dated October 21, 2022, for a binding ruling regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of five styles of paddling apparel from Thailand.
While this request includes five styles of apparel, we note that one style, style DW2209, a neoprene and nylon knit paddling top, received a binding ruling from the National Commodity Specialist Division (NCSD). NCSD classified the product under heading 6113.00.9086, HTSUS Annotated (HTSUSA), which provides for “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906, or 5907: Other: Other: Other: Women’s or girls’,” with a duty rate of 7.1 percent ad valorem. See New York Ruling Letter (NY) N329206, dated November 15, 2022.
Your request with respect to the other four styles of paddling apparel was forwarded by the NCSD to this office for a response.
FACTS:
The four styles of products subject to this ruling are types of paddling apparel for use in kayaking and canoeing in the seated position. The four styles consist of: Style DW1901, “Downwind Short,” a type of paddling-specific shorts; Style DW1902, “Downwind Mid-Weight Pant,” a type of paddling-specific pant; Style DW1903, “Downwind Thermal Pant,” another type of paddling-specific pant; and Style DW1906, “Downwind Thermal Top,” a paddling-specific top. Each style can be worn separately or together with other styles. A more detailed description of each of the four styles is provided below.
Style DW1901 is a pair of paddling shorts constructed from neoprene laminated fabrics. The waist, the back panel extending to the seat, and thigh cuffs are constructed from a two-layer laminated fabric consisting of an outer layer of 100% nylon knit fabric bonded to an inner layer of neoprene that has been coated with a synthetic rubber. The balance of the garment is constructed from a three-layer laminated fabric consisting of a layer of 100% nylon knit fabric, a middle layer of neoprene, and an inner layer of 100% nylon knit fabric. The three-layer laminated fabric appears to exceed 60% of the visible surface area of the garment. The close-fitting, pull-on shorts feature a cuffed hem and a thigh pocket with drainage holes.
Style DW1902 is a pair of paddling pants constructed from neoprene laminated fabrics. The waist, the back panel extending to the seat, and ankle cuffs are constructed from a two-layer laminated fabric consisting of an outer layer of 100% nylon knit fabric bonded to an inner layer of neoprene that has been coated with a synthetic rubber. The balance of the garment is constructed from a three-layer laminated fabric consisting of a layer of 100% nylon knit fabric, a middle layer of neoprene, and an inner layer of 100% nylon knit fabric. The three-layer laminated fabric exceeds 60% of the visible surface area of the garment. The close-fitting, pull-on pants feature ankle cuffs and a thigh pocket with drainage holes.
Style DW1903 is a pair of paddling pants constructed from neoprene laminated fabrics. The waist and the back panel extending to the seat are constructed from a two-layer laminated fabric consisting of an outer layer of 100% nylon knit fabric bonded to an inner layer of neoprene that has been coated with a synthetic rubber. The balance of the garment is constructed from a three-layer laminated fabric consisting of a layer of 100% nylon knit fabric, a middle layer of neoprene, and an inner layer of 100% nylon knit fabric. The three-layer laminated fabric exceeds 60% of the visible surface area. The close-fitting, pull-on pants feature sealed seams, ankle cuffs, and a thigh pocket with drainage holes.
Style DW1906 is a paddling top constructed from neoprene laminated fabrics. The sleeves, shoulders, upper back, and underarms extending to the middle of the side panel (gusset) are constructed from a two-layer laminated fabric consisting of an outer layer of neoprene bonded to an inner layer of 100% nylon knit fabric. The neoprene layer is completely coated with a synthetic rubber. The balance of the garment is constructed from a three-layer laminated fabric consisting of a layer of 100% nylon knitted fabric, a middle layer of neoprene, and an inner layer of 100% nylon knit fabric. No one component exceeds 60% of the visible surface area of the garment, though the three-layer laminated fabric accounts for 58% of the visible surface area of the garment. The garment pulls over the head and features flatlock seams; a mock turtleneck; long, cuffed sleeves; and a hem with an elastic drawcord for tightening.
The products are all manufactured in Thailand and are considered unisex. All styles are made from Yamamoto rubber (two-layer and three-layer laminated fabrics). According to Yamamoto’s website, the rubber, which is made of limestone, has a completely closed cell structure (honeycomb structure), extremely low density (lightweight), high flexibility, and excellent heat insulation, which indicates that the neoprene’s structure is cellular. See Yamamoto, https://yamamoto-bio.com/material-e/rubber.html (last visited April 24, 2023).
In addition, the two-layer laminated neoprene fabric is coated with a synthetic rubber known as super composite skin (“SCS”). Yamamoto’s website describes SCS as a closed-cell chloroprene rubber that repels water in the air but absorbs water in the water. See Yamamoto, https://yamamoto-bio.com/material-e/rubber.html (last visited April 24, 2023). Its SCS micellar structure repels water in the air, but in water it adapts and exerts a surface mechanism that brings the water flow resistance to as close to zero as possible. The surface resistance value is less than 1/10 that of conventional skins, and 1/100 in water, which indicates that the SCS synthetic rubber coating is also cellular.
Each garment is constructed, in part, of the two-layer laminated neoprene fabric and of the three-layer laminated neoprene fabric as described above. Additionally, the garments are constructed from fabrics containing 100% knit nylon fabric and a cellular neoprene.
ISSUE:
What is the tariff classification of the four styles of paddling apparel?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2023 HTSUS provisions under consideration are as follows:
4008 Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber:
4008.11 Of cellular rubber: Plates, sheets and strip:
* * *
4015 Articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber:
* * *
5906 Rubberized textile fabrics, other than those of heading 5902:
* * *
6113 Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907:
* * *
Note 1 to Section XI: Textiles and Textile Articles provides that:
This Section does not cover: (ij) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with rubber, or articles thereof, of Chapter 40;
* * *
Note 1 to Chapter 40 provides:
Except where the context otherwise requires, throughout the Nomenclature the expression “rubber” means the following products, whether or not vulcanised or hard: natural rubber, balata, gutta-percha, guayle, chicle and similar natural gums, synthetic rubber, factice derived from oils, and such substances reclaimed.
Note 2 to Chapter 40 provides:
This Chapter does not cover:
Goods of Section XI (textiles and textile articles);
. . . .
* * *
Note 3 to Chapter 56 provides:
Headings 56.02 and 56.03 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).
* * *
Note 5 to Chapter 59 provides:
For purposes of heading 5906, the expression “rubberised textile fabrics” means:
(a) Textile fabrics impregnated, coated, covered or laminated with rubber,
* * *
This heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 40), or textile products of heading 58.11.
* * *
Note 9 to Chapter 61 provides:
Garments of this Chapter designed for left over right closure at the front shall be regarded as men’s or boys’ garments, and those designed for right over left closure at the front as women’s or girls’ garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.
Garments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments.
* * *
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 40.08 states, in pertinent part, that:
This heading thus includes:
Plates, sheets and strip of cellular rubber combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, provided these textile materials are present merely for reinforcing purposes.
In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles and special products, such as pile fabrics, tulle and lace, are regarded as having a function beyond that of mere reinforcement.
Plates, sheets and strip of cellular rubber combined with textile fabric on both faces, whatever the nature of the fabric, are excluded from this heading (heading 56.02, 56.03, or 59.06).
* * *
EN 40.15 states, in pertinent part, that:
This heading covers articles of apparel and clothing accessories (including gloves, mittens and mitts) e.g., protective gloves and clothing for surgeons, radiologists, divers, etc., whether assembled by means of an adhesive or by sewing or otherwise obtained. These goods may be :
Wholly of rubber.
Of woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with rubber, other than those falling in Section XI (see Note 3 to Chapter 56 and Note 5 to Chapter 59).
* * *
EN 59.06 states, in pertinent part, that:
This heading covers:
(A) Textile fabrics impregnated, coated, covered or laminated with rubber, including dipped fabrics (other than those of heading 5902)
[. . .]
These rubberised fabrics are used principally for the manufacture of waterproof apparel, special radiation protection garments, pneumatic articles, camping equipment, sanitary goods, etc.
* * *
At issue here are four garments that are each constructed, in part, of a two-layer laminated neoprene fabric and a three-layer laminated neoprene fabric. The balance of each garment is constructed from a three-layer laminated fabric consisting of a layer of 100% nylon knit fabric, a middle layer of neoprene, and an inner layer of 100% nylon knit fabric. For Styles DW1901, DW1902, and DW1903, the three-layer laminated fabric exceeds 60% of the visible surface area of the garment. For Style DW1906, the three-layer laminated fabric accounts for 58% of the visible surface area. As the four styles are each mostly comprised of the three-layer laminated fabric, we find that the three-layer laminated fabric imparts the essential character of each of the four garments at issue. Therefore, before properly classifying the four styles of garments subject to this ruling, we must first determine the proper classification of the three-layer laminated fabric.
At the outset, we note that Note 1(ij) to Section XI, HTSUS, precludes classification of textile and rubber combinations under that section if they are first classifiable under Chapter 40, HTSUS. Note 1 to Chapter 40 defines the term “rubber” for classification purposes to include “synthetic rubber,” which includes neoprene. In reviewing the applicable heading for the neoprene, we examine subheading 4008.11, HTSUS, which provides for plates, sheets, strip, rods and profile shapes of cellular rubber. As noted above, the neoprene used in the construction of each of the four styles is a synthetic, cellular rubber. EN 40.08 provides that this heading includes cellular rubber combined with textile fabrics, provided that the textile fabrics are present merely for “reinforcing purposes.” Additionally, EN 40.08 states that: “[p]lates, sheets and strip of cellular rubber combined with textile fabric on both faces, whether the nature of the fabric, are excluded from this heading (heading 56.02, 56.03, or 59.06).”
Here, the neoprene layer is sandwiched between two layers of 100% nylon knit fabric in the construction of the three-layered laminated fabric in each of the four styles. The EN for heading 4008, HTSUS, precludes classification of rubber and textile combinations when the cellular rubber is combined “with textile fabric on both faces.” Moreover, the EN for heading 4008, HTSUS, precludes classification of rubber and textile combinations when the textile fabric presence is more than reinforcement purposes. The nylon knit fabric used in each of the four styles of garments is not only for reinforcement purposes, but also for visual and stylistic purposes. Consequently, the three-layer laminated neoprene fabric consisting of a neoprene layer sandwiched between two layers of 100% nylon knit fabric is not classifiable under heading 4008, HTSUS. Since the fabric is not classifiable under heading 4008, HTSUS, then each of the four styles of garments are not classifiable under heading 4015, HTSUS, as “[a]rticles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber.” Therefore, Chapter 40, HTSUS, is inapplicable to the four styles at issue here.
We next consider whether the three-layer laminated fabric is classified under Chapter 56, HTSUS. Note 3 to Chapter 56, HTSUS, explains, in pertinent part, that “headings 56.02 and 56.03 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of these materials (compact or cellular).” Here, each of the four garments are constructed with a 100% nylon knit fabric and neoprene, and neither are nonwoven fabrics or felt that would be provided for under Chapter 56, HTSUS. As such, Chapter 56, HTSUS, is inapplicable to the four styles at issue here.
Finally, we consider whether the three-layer laminated fabric is classified under Chapter 59, HTSUS. In examining Note 5 to Chapter 59, HTSUS, we note that heading 5906 applies to rubberized textile fabrics, which includes textile fabrics impregnated, coated, covered or laminated with rubber. Here, the three-layer laminated fabric is a 100% nylon knit fabric “impregnated” with neoprene cellular rubber (i.e., the nylon knit fabric layers sandwich the neoprene cellular rubber layer). EN 59.06 provides that the rubberised fabrics provided for under its heading are “used principally for the manufacture of waterproof apparel,” which would reasonably be useful in the manufacture of apparel for paddling, an activity in which waterproofing would be desirable. Therefore, we find that the three-layer laminated fabric, consisting of a 100% nylon knit fabric impregnated with a neoprene cellular rubber, is classified under heading 5906, HTSUS.
Having determined that each of the four styles are composed primarily of a three-layer laminated fabric classified under heading 5906, HTSUS, we now consider the proper classification of the garments. Heading 6113, HTSUS, provides for “[g]arments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907.” In Headquarters Ruling Letter (HQ) 967613, dated January 30, 2006, we considered the classification of a unisex immersion suit made of neoprene and knit fabric. We found that the immersion suit was comprised of a neoprene cellular rubber with nylon fabric attached on both sides and this textile fabric was used for more than reinforcement purposes. There, we determined that that the unisex immersion suit was a garment made up of a knitted fabric of headings 5903, 5906, or 5907, and therefore classified the garment under heading 6113, HTSUS.
In HQ 961087, dated June 5, 1998, we considered the classification of a unisex sport shirt constructed of three-layer laminated fabric consisting of an inner and outer layer of knit fabric and a center layer of neoprene rubber. There, we concluded that the three-layer laminated fabric was a rubberized fabric classified under heading 5906, HTSUS, and that the unisex sport shirt was classified under heading 6113, HTSUS.
Like the unisex immersion suit in HQ 967613 and the unisex sport shirt in HQ 961087, the four styles of unisex paddling apparel here are composed a three-layer laminated fabric classified under heading 5906, HTSUS. By application of GRI 1, the four styles of paddling apparel are therefore classified under heading 6113, HTSUS, as garments made up of knitted fabrics of heading 5906, HTSUS.
We note that Note 9 to Chapter 61, HTSUS states in pertinent part that “[g]arments which cannot be identified as either men’s or boys’ garments or as women’s or girls’ garments are to be classified in the headings covering women’s or girls’ garments.” By applying Note 9 to Chapter 61, HTSUS, to the subject unisex paddling apparel, we classify the four styles of paddling apparel under the headings of Chapter 61 covering women’s or girls’ garments.
HOLDING:
By applying GRI 1, the four styles of paddling apparel at issue are classified under subheading 6113.00.90, HTSUS, as “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906, or 5907: Other.” Styles DW1901 (shorts), DW1902 (pants), and DW1903 (pants) are classifiable under subheading 6113.00.9052, HTSUSA; Style DW1906 (top) is classifiable under subheading 6113.00.9086, HTSUSA. The 2023 column one general rate of duty is 7.1% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/current.
A copy of this ruling letter should be attached to the entry documents filed at the time the merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Sarah Kafka, Chief Food, Textiles, and Marking Branch