OT:RR:CTF:FTM H331671 BJK
Mr. Scott R. Darling
Giant Fish
2864 SW Champlain Drive
Portland, OR 97205
RE: Modification of HQ H329396; Tariff Classification of Paddling Apparel from Thailand
Dear Mr. Darling:
This letter is in reference to Headquarters Ruling Letter (HQ) H329396, dated April 24, 2023, which concerns the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of four styles of paddling apparel from Thailand. For the reasons set forth below, we are modifying HQ H329396 with respect to the classification analysis discussed in the ruling.
FACTS:
HQ H329396 described the four styles of paddling apparel, in relevant part, as follows:
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 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 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 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 coated with a synthetic rubber that completely obscures the underlying knit fabric. 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. 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 from Thailand?
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 instant determination is made pursuant to GRI 1 and 6.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
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:
6113.00.10 Having an outer surface impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric
6113.00.90 Other
* * *
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 used. 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 coated two-layer laminated neoprene knit fabric and a three-layer laminated neoprene knit fabric. Thus, we must first determine whether the goods are of rubber or of textile for classification purposes. We note that Note 1(ij) to Section XI, HTSUS, excludes 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. 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 two-layer laminated fabric is comprised of a neoprene layer coated with a synthetic rubber that is bonded to a 100% nylon knit fabric. The three-layer laminated fabric consists of a neoprene layer that is sandwiched between two layers of 100% nylon knit fabric in each of the four styles of garments. The EN for heading 4008, HTSUS, excludes 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, excludes classification of rubber and textile combinations when the textile fabric is present for 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. For Style DW1906, the two-layer laminated fabric’s inner layer of 100% nylon knit fabric serves a functional purpose to assist in pulling the garment on and off. Consequently, the two-layer laminated fabric, consisting of a 100% nylon knit fabric bonded to neoprene rubber coated with a synthetic rubber and the three-layer laminated neoprene fabric consisting of a neoprene layer sandwiched between two layers of 100% nylon knit fabric are not classifiable under heading 4008, HTSUS. Since the fabrics are not classifiable under heading 4008, HTSUS, then 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.
We next consider whether the two-layer and three-layer laminated fabrics are classified under Chapter 56, HTSUS. Note 3 to Chapter 56, HTSUS, explains, in pertinent part, that “headings 56.02 and 56.03 cover 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 of two types of fabrics consisting of a 100% nylon knit fabric and neoprene. Neither fabric are nonwoven or felt that are provided for under Chapter 56, HTSUS. As such, Chapter 56, HTSUS, is inapplicable to the four styles at issue.
Next, we consider whether the two-layer and three-layer laminated fabrics are classified under Chapter 59, HTSUS. In examining Note 5 to Chapter 59, HTSUS, we note that heading 5906, HTSUS, applies to rubberized textile fabrics, which includes textile fabrics impregnated, coated, covered or laminated with rubber. Here, the two-layer laminated fabric is a 100% nylon knit fabric bonded to, or otherwise laminated with, neoprene rubber that is coated with synthetic rubber. Additionally, the three-layer laminated fabric consists of two layers of knit fabric bonded to a neoprene sheet. EN 59.06 provides that the rubberized fabrics provided for under this heading are “used principally for the manufacture of waterproof apparel.” The rubberized fabric at issue here is used in apparel worn on the water for paddling in a kayak or canoe, an activity in which waterproofing is desirable. Therefore, we find that both the two-layer and three-layer laminated knit fabrics are classified under heading 5906, HTSUS.
Having determined that each of the four styles are composed of fabrics belonging to 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 that 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.
In both HQ 967613 and HQ 961087, the merchandise at issue was composed of one type of fabric, whereas here we have four styles of garments composed of two different types of fabrics. However, because we determined the two-layer and three-layer laminated fabrics are classified under heading 5906, HTSUS, we can examine similar merchandise composed of a fabric under heading 5906, HTSUS. Therefore, 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 of fabrics 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.
Having determined that the four styles of paddling apparel are classified under heading 6113, HTSUS, we must further determine the correct subheading by application of GRI 6. At issue here are subheading 6113.00.10, HTSUS, which provides for “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,” and subheading 6113.00.90, HTSUS, which provides for “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906, or 5907: Other.”
In HQ 964642, dated May 18, 2001, we applied GRI 1, pursuant to GRI 6, to determine whether subheading 6113.00.10, HTSUS, or subheading 6113.00.90, HTSUS, applied to a jacket that was composed of a 100% polyvinyl chloride (PVC) outer shell and a mixed polyester and rayon fleece body lining. The jacket’s PVC outer shell was compact plastic with a knit textile fabric backing. There, we found that the PVC outer shell was impregnated, coated, covered, or laminated with a compact plastic material which completely obscured the underlying knit fabric backing. By applying GRI 1, pursuant to GRI 6, we determined that the jacket was classified in subheading 6113.00.10, HTSUS.
Here, pursuant to GRI 6, we also apply GRI 1 to review subheadings 6113.00.10, HTSUS, and 6113.00.90, HTSUS. Subheading 6113.00.10, HTSUS, applies to garments composed of fabrics of heading 5903, 5906, or 5907, for which “the outer surface is impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric” (emphasis added). Subheading 6113.00.10, HTSUS, requires that rubber or plastic material coats the outer surface and that the coating be applied in a manner such that the textile underneath cannot be visible. In other words, due to the coating, the textile character is eliminated from the outer surface. In HQ H281486, dated January 31, 2017, we considered whether an upper body garment with plastic material covering small sections of fabric on the outer surface of the garment was classifiable under subheading 6113.00.10, HTSUS. There, we concluded that the plastic material applied to small sections of fabric on the outer surface did not completely obscure the underlying fabric of the outer surface of the garment, as required per the plain language of subheading 6113.00.10, HTSUS. In contrast, as stated above, in HQ 964642, we found that a jacket was classified under subheading 6113.00.10, HTSUS, because the entire outer shell was impregnated, coated, covered, or laminated with a compact plastic material which completely obscured the underlying knit fabric.
Here, Styles DW1901, DW1902, and DW1903 are composed of two types of rubber coated fabrics under heading 5906, a two-layer laminated fabric and a three-layer laminated fabric. With respect to the three styles, the outer surface is a rubber coated 100% nylon knit fabric in which the nylon knit is visible and not completely obscured. For Style DW1906, however, the rubber coating on the outer surface of the two-layer laminated fabric completely obscures the underlying knit layer where it is used on the garment sleeves, shoulders, upper back, and underarms. The rest of Style DW1906’s outer surface is the rubber coated three-layer laminated fabric, in which the 100% nylon knit fabric is visible and not completely obscured. Despite portions of the outer surface of Style DW1906 being coated with rubber which completely obscures the underlying knit fabric, subheading 6113.00.10, HTSUS, does not apply here because the entire outer surface of the garment itself is not “impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric.” As discussed in HQ H281486, the plain language of subheading 6113.00.10, HTSUS, does not provide for garments for which the outer surface is partially covered or obscured. Indeed, in examining the plain language of subheading 6113.00.10, HTSUS, it is not enough that the entire outer surface is simply coated with rubber or plastics material, but the outer surface must be coated to such an extent as to eliminate the textile character from the outer surface. Based on the foregoing, the four styles of paddling apparel cannot be classified under subheading 6113.00.10, HTSUS.
In turning to subheading 6113.00.90, HTSUS, we note that in instances where a garment is classifiable under heading 6113, HTSUS, but does not have an outer surface coated with rubber or plastic material that completely obscures the underlying fabric, we have classified the garment under subheading 6113.00.90, HTSUS. See HQ H281486; see also NY N245968, dated September 27, 2013 (classifying a women’s short moto jacket, constructed of a blend of polyester, rayon, and spandex knit fabric and visibly coated with polyurethane on the outer surface under subheading 6113.00.90, HTSUS, because the coating on the outer surface did not completely obscure the underlying fabric). As discussed above, the four styles of paddling apparel are composed of fabrics under heading 5906, and are therefore classified under heading 6113, HTSUS. None of the four styles have an outer surface coated with rubber that completely obscures the underlying knit fabric, and as such, these styles cannot be classified under subheading 6113.00.10. Therefore, by application of GRI 1 and GRI 6, the four styles of paddling apparel are classified under subheading 6113.00.90, HTSUS.
Additionally, 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 application of GRI 1 and GRI 6, 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.” 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.
EFFECT ON OTHER RULINGS:
HQ H329369, dated April 24, 2023, is hereby MODIFIED with respect to the classification analysis of the four styles of paddling apparel as described above.
This modification and revocation of treatment is not subject to the notice and comment provisions of 19 U.S.C. §1625(c) because HQ H329369 was in effect for less than 60 days. See 19 C.F.R. § 117.12(b).
Sincerely,
Yuliya A. Gulis, Director Commercial Trade and Facilitation Division