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HQ 951357


January 12, 1993

CLA-2 CO:R:C:T 951357 jb

CATEGORY: CLASSIFICATION

TARIFF: 6113.00.0084; 6113.00.0086; 6114.30.3060

Duncan A. Nixon, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C. 1707 L Street, N.W.
Washington, D.C. 20036

RE: Request for reconsideration of NY 870764; neoprene shorts; garments, subheading 6113.00.0084, and 6113.00.0086, HTSUSA

Dear Mr. Nixon:

This is in response to your letter dated March 12, 1992, on behalf of your client, Dynamic Classics, Ltd., requesting reconsideration of NY 870764, dated February 20, 1992, concerning the classification of neoprene shorts designed to be used in conjunction with exercise. Samples were provided. Our response follows.

FACTS:

The original sample, for which reconsideration of NY 870764 is requested, was described as a pair of men's neoprene shorts constructed of an outer surface of knit pile construction, an inner layer of neoprene rubber, with seams covered on the outside and a decorative half inch binding. In that ruling four style numbers were cited: two for men (styles 876 and 877) and two for women (styles 878 and 879). It should be noted that in NY ruling 870764 the style numbers were reversed for men and women. At the time of the original request, it was believed that the submitted sample was representative of all styles. This is not the case.

The instant samples, submitted with the request for reconsideration of NY 870764, consist of men's styles 876 and 877 and women's styles 878 and 879. The shorts are constructed from an expanded synthetic rubber (neoprene) laminated on both the inside and the outside surface to nylon knit fabrics. Both the original sample and the instant samples are produced in Taiwan.

Since the time of the original request for reconsideration, Dynamic Classics has ceased manufacturing the neoprene shorts of knit pile construction (the sample submitted in NY 870764). All such merchandise is now constructed of the nylon knit fabric. As such, this ruling will concern itself primarily with the "updated" samples.

You assert that the submitted articles are not true "garments". Accordingly, classification should fall either in heading 6307, HTSUSA, which provides for other made up textile articles, or in chapter 40, HTSUSA, which provides for rubber and articles thereof.

ISSUE:

Whether the subject merchandise are classifiable as garments in heading 6113, HTSUSA, or in the alternative, other made up articles of heading 6307, HTSUSA, or as articles of rubber of chapter 40, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied in the order of their appearance.

You state that classification of the shorts under HTSUSA is mandated by the holding of the Court of International Trade in Dynamic Classics, Ltd. v. United States, 10 CIT 66 (1986). That case involved an exercise suit of polyvinyl material which the importer maintained was not chiefly worn for purposes of decency, comfort and/or adornment, but rather to seal in body heat and promote weight loss through perspiration. In support of this argument, the importer relied on the definition of "wearing apparel" enunciated by the Court in Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D. 2006 (1958), which stated the term "wearing apparel" is limited to articles used as a covering or a protection against the elements, or as items of personal comfort or adornment.

In Dynamic Classics, the court determined that though the exercise suit could be considered to provide protection from the elements, decency to the wearer and adornment for the body, it was chiefly used as a weight loss device and therefore not classifiable as wearing apparel, but as articles not specifically provided for, of plastics. You state that this reasoning is directly on point as to the submitted exercise shorts. Your arguments can be summarized as follows:

1. Though the above cited cases are based on the Tariff Schedules of the United States Annotated (TSUSA), you state they are still applicable under the HTSUSA because Chapters 61 and 62 of the HTSUSA encompass the same products as the TSUSA provisions for wearing apparel.

2. You refer to HQ 089581 of November 4, 1991, which held that an exercise belt made of a similar neoprene nylon material was not a "clothing accessory" because it did not adorn or accent clothing and because it was used in conjunction with exercise for weight loss.

3. You argue that the marketing of Dynamic Classics' supports classification under heading 6307, HTSUSA, as the exercise shorts are advertised and sold as weight reduction devices and not apparel.

First, though the principles and definitions cited under Dynamic Classics and Antonio Pompeo are not irrelevant, they must be considered in conjunction with the changes brought about by the implementation of the HTSUSA. Antonio Pompeo defined the term "wearing apparel" to include articles worn by human beings for "decency, comfort, or adornment" but not to include articles worn for "protection against the hazards of game, support, occupation, or protection against injury." Thus, under TSUSA items such as firemen's turnout clothing, heat-reflective clothing and bomb suits were not classifiable under the wearing apparel provisions of Schedule 3, TSUS, but under other residual provisions providing for other articles not specially provided for, of textile materials, or in Schedule 7, TSUS, under the provisions for sports equipment (e.g., padded hockey pants, motorcross pants, etc.).

Since that time, HTSUSA has expanded the items classifiable as wearing apparel to include items previously excepted under those provisions, namely, flight suits, anti-radiation suits, certain protective sports clothing, fire protection suits, etc.

As was stated in HQ 088542, dated May 1, 1992, concerning similar merchandise:

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 articles 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...

While reference is made to the exercise suit decision of Dynamic Classics, a subsequent relevant ruling, HRL 081785, dated March 17, 1989, is ignored. In the latter decision, sauna shorts and belts made of nylon bonded to neoprene rubber, designed to promote weight loss, were classified under subheading 6113.00.0085, HTSUSA, a provision for other men's garments made up of knitted fabric of heading 5906, or under subheading 6113.00.0090, HTSUSA, if women's. Thus, shorts, similar to the submitted merchandise were classified under the provision for wearing apparel.

Secondly reference is made to HRL 089581 in which a neoprene exercise belt was classified as a made up article of textile in heading 6307, HTSUSA, rather than as a made up clothing accessory of heading 6117, HTSUSA.

That ruling turned on the definition of a clothing accessory, which is not clearly defined by section and chapter notes. The ruling concluded that

"an accessory must relate to or exhibit some nexus with the primary article... an accessory must be intended for use solely or principally as an accessory. Articles of heading 6117 are used to enhance, adorn, or compliment articles of clothing. Articles used principally for other purposes are not classified in heading 6117."

As that ruling addressed itself only to clothing accessories, it is extraneous to the argument in this case.

Also not convincing is the argument that classification under heading 6307, HTSUSA, is supported by the fact that the exercise shorts are advertised, sold and are to be used as weight reduction devices and not apparel. HQ 088542 stated:

...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 suggests that "the ultimate test of whether an article is wearing apparel depends on its use", citing Dynamic Classics, Ltd. v. United States, 10 CIT 66 (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.

Heading 6307, HTSUSA, provides for other made up textile articles. This heading is a "basket" provision intended to classify merchandise not provided for more specifically in other headings of the Nomenclature (See, for example, NY 868264, dated November 19, 1991, regarding neoprene sauna belts and HQ 950470, dated January 7, 1992, regarding a neoprene elbow warmer). In the case at hand, heading 6307, HTSUSA, is not the most appropriate applicable heading as other headings describe the merchandise. While the garment may be marketed and sold as an exercise device and may promote weight loss through perspiration expended during exercise routines, it is provided for in the chapter in HTSUSA encompassing knitted or crocheted garments.

Chapter 61, HTSUSA, covers articles of apparel and clothing accessories, knitted or crocheted. Heading 6113, HTSUSA, applies to garments made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907. The textile covered neoprene shorts are made from fabric that is classifiable in heading 5906, which provides for rubberized textile fabric, other than those of heading 5902.

As was outlined in HQ 089581, neoprene is a synthetic cellular rubber containing tiny bubbles of gas. The bubbles give the rubber insulating qualities desirable in certain articles. A textile fabric has been laminated to the cellular rubber. The textile acts not only as a reinforcing material for the neoprene, but also provides an attractive exterior surface and a comfortable interior to the item.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), constitute the official interpretation of the tariff at the international level. It has been the practice of the Customs Service to follow, whenever possible, those terms when interpreting the HTSUSA. Chapter Note 4(d) to Chapter 59, HTSUSA, states:

4. For the purposes of heading No. 59.06, the expression "rubberised textile fabrics" means:

(d) Plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is more than mere reinforcement, other than textile products of heading No. 58.11 (emphasis added)

In accordance with the EN to Chapter 59, HTSUSA, sheets or strip of cellular rubber combined with a textile which is more than mere reinforcing are "rubberized textile fabrics" for classification purposes. Articles made from the instant textile and neoprene rubber material are considered textile articles and are included under Chapter 61 (See NY 859239, dated January 22, 1991, NY 864231, dated July 2, 1991 and HQ 950562, dated January 9, 1992, for similar articles classified under Chapter 61).

In the instant case, the function of the textile portion of the neoprene shorts goes beyond that of "mere reinforcement". The garments feature the textile portion not only on the outside surface but also on the interior portion, facing the skin of the wearer. Thus,:

1. the colored textile portion featured on the outside surface of the garment enhances the aesthetic appeal of the shorts; and

2. the textile portion featured on the inside provides comfort to the wearer and allows the garment to be put on and taken off without undue difficulty

The specific subheading in Chapter 61 that applies turns on which sample is being discussed. The garment submitted in NY 870764 was referred to as "consisting of nylon fabric having a knit pile construction". Note 7 to Chapter 61, HTSUSA states:

Garments which are, prima facie, classifiable both in heading 61.13 and in other headings of this Chapter , excluding heading No. 61.11, are to be classified in heading No. 61.13

The wording of heading 6113 must first be examined to determine if it is in fact, a competing provision.

Heading 6113 provides for garments made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907. If a garment is not constructed of fabric of those headings, it cannot be classified within that provision. Chapter 60 includes knitted or crocheted pile fabrics. Chapter Note 1(c) to Chapter 60, HTSUSA, states:

This Chapter does not cover:

(c) Knitted or crocheted fabrics, impregnated, coated, covered or laminated of Chapter 59. However, knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in heading 6001.

Therefore, by application of the EN, the neoprene shorts submitted in NY 870764 are precluded from classification under heading 6113, as they are not composed of fabric under heading 5903, 5906 or 5907, but consist of knit pile construction. As such, Note 7 to Chapter 61, HTSUSA, also does not apply to the men's shorts of NY 870764 because the garment is not prima facie classifiable under heading 6113.

The EN to heading 6114 state:

This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.

The heading includes interalia:

(5) Special articles of apparel used for certain sports or for dancing or for gymnastics (e.g., fencing clothing, jockeys' silks, ballet skirts, leotards).

Accordingly. heading 6114 is preferred to a heading under Chapter 60 as the former specifically provides for special articles of apparel used for certain sports.

The instant samples on the other hand, submitted with the request for reconsideration of NY 870764, pose a different situation. Styles 876, 877, 878 and 879 do not have a knit pile construction but a surface of nylon knit fabric. Thus, classification is accorded in heading 6113, HTSUSA.

As classification of the shorts has already been determined under heading 6113, HTSUSA, there is no reason to discuss Chapter 40, HTSUSA, as a possible classification alternative. We will add however, that though HQ 950048, dated March 2, 1992, to which you referred, does state that whether a textile component is present merely for reinforcing purposes is a question of fact, that ruling also goes on to say that "our experience with materials similar to that at issue indicates that most textiles serve some reinforcing purpose when combined with plastics, although they may also have other functions". Emphasis added.

HOLDING:

The men's shorts constructed of knit pile fabric submitted with the original request for reconsideration, are correctly classifiable under heading 6114.30.3060, HTSUSA, which provides for men's or boys' other garments, knitted or crocheted, of man- made fibers. The applicable rate of duty is 16.1 percent ad valorem. The textile category designation is 659.

The subsequent submitted samples, Styles 876 and 877, are classifiable in subheading 6113.00.0084, HTSUSA, which provides for other men's garments, made up of knitted or crocheted fabrics of heading 5903, 5906, or 5907. Styles 878 and 879, are classifiable in subheading 6113.00.0086, HTSUSA, which provides for other women's garments, made up of knitted or crocheted fabrics of heading 5903, 5906, or 5907.

The applicable rate of duty for both the men's and women's garments is 7.6 percent ad valorem and the textile category designation is 659.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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