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HQ 952483


May 27, 1993

CLA-2 CO:R:C:T 952483 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.20.0000

Ms. Jean F. Maguire
Area Director
U.S. Customs Service
New York Seaport Area
6 World Trade Center
New York, N.Y. 10048-0945

RE: Request for Guidance in the Classification of Buoyancy Articles

Dear Ms. Maguire:

This is in reply to your memorandum of August 18, 1992. That memo concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of buoyancy devices. Please reference your file CLA- 2-63:S:N:N3H:345 - 708.

FACTS:

The merchandise at issue consists of personal buoyancy devices, in the form of vests, swim aids for children, etc. These devices generally are constructed of an outer layer of textile surrounding inner layers of bladders, foam panels, or other flotation materials.

ISSUE:

When are these articles classified as garments or other made up articles under the HTSUSA? If classified as other made up articles, are they classified in the eo nomine provision for lifejackets and lifebelts?

LAW AND ANALYSIS:

Garment v. Other Made Up Article

In HRL 952204 of April 12, 1993, we examined the issue of whether a flotation device is classifiable as a garment. The merchandise at issue in that ruling was: an inflatable swimming aid [(a swim sweater)], ... which is specially designed for use by children ages 2-6. The article is composed of a rubber inner tube, the flotation chamber, encased in a stretch nylon case which is firmly attached to a short nylon sweater. * * * It permits the child to float upright or to try swimming, providing the appropriate buoyancy under the body to keep her head out of the water. * * * [T]he article is not designed to perform a lifesaving function and is not sold for that purpose....

In HRL 087946 of December 24, 1991, we initially classified this merchandise under heading 6114, HTSUSA, as a sweater. In determining that this decision was incorrect we stated:

We do not dispute that the imported articles are designed to be worn and, therefore, fall generally within the class or kind of articles considered to be wearing apparel. See Arnold v. United States, 147 U.S. 494, 496 (1892). Nor do we argue that the term "wearing apparel" does not cover articles worn essentially for protective purposes. Admiral Craft Equip. Corp. v.
United States, 82 Cust. Ct. 162, C.D. 4796 (1979) (plastic lobster bibs are wearing apparel). However, all things worn by humans are not necessarily wearing apparel. See
Dynamics Classics, Ltd. v. United States, Slip. Op. 86-105, 10 C.I.T. 666 (Oct. 17, 1986) (plastic suits used for weight reduction inappropriate for wear during exercise or work not wearing apparel);
Antonio Pompeo v. United States, 40 Cust. Ct. 362, C.D. 2006 (1958) (crash helmets not wearing apparel); Best v. United States, 1 Ct. Cust. Appls. 49, T.D. 31009 (1910) (ear caps for prevention of abnormal ear growth not wearing apparel).

Admiral Craft Equipment, supra, developed the standard that items are not considered wearing apparel when the use of those items goes "far beyond that of general wearing apparel." Daw Industries, Inc. v. United States, 714 F.2d 1140 (Fed. Cir. 1983) (sheaths and socks used exclusively with protheses do not provide "significantly more, or essentially different," protection than analogous articles of clothing, but merely "differ incrementally"). The Daw reasoning is applicable to this matter. While the swim sweater may provide some protection from the elements, and may even be said to adorn the body (see Antonio Pompeo, supra (the term wearing apparel includes articles worn for decency, comfort or adornment)), it is exclusively used in very specific situations. The increment in the difference in use and effect between this article and a conventional sweater is so large that we must conclude that the swim sweater is no longer wearing apparel.

In HRL 950562 of January 9, 1992, we classified a Stratus snorkeling vest, designed to provide surface flotation as well as warmth, as a garment. The accompanying literature described the merchandise as follows: Being able to see clearly, breathe comfortably, and move efficiently are certainly important factors governing the enjoyment of snorkeling. But if any one comfort element of snorkeling could be isolated as most important, it would be buoyancy control. While this feature is certainly of vital importance, the Snorkeling Vest actually provides a multitude of other advantages that add to the overall comfort and enjoyment....

In addition to supplying comfortable surface flotation, the Stratus keeps you warm as well. These two features, never combined before, are accomplished by bonding a high visibility flotation pocket to a ~" neoprene vest.

It is clear that the neoprene vest imported without a bonded flotation pocket would be classified as a garment. See the Explanatory Note to Heading 6113, HTS (heading includes oilskins & divers' suits). Following Daw Industries, supra, we must now determine whether the additional protection and other advantages afforded by the flotation pocket are "significantly more, or essentially different," than the neoprene vest alone.

The instruction sheet for the Stratus Snorkeling Vest states that "[i]t is designed to provide warmth and a small amount of flotation." Emphasis added. It "incorporates a neoprene vest for warmth, with a built-in buoyancy enhancement of surface flotation. The progressive design is stylish for both men and women snorkel divers." Emphasis added. Based upon this, it is our opinion that the use and effect of the Stratus Snorkeling Vest does not differ significantly from a neoprene vest alone. HRL 950562 was decided correctly, and is affirmed.

Other Made Up Article (Lifejackets) v. Other Made Up Article (Other)

In HRL 950496 of March 5, 1992, we classified a windsurfer's buoyancy vest within subheading 6307.20, HTSUSA, as a lifejackets, even though it did not meet the U.S. Coast Guard specifications for life preservers. This policy was affirmed in HRL 952930 of February 25, 1993. In HRL 952204, supra, we classified the swim sweater under subheading 6307.90, HTSUSA, as an other article of textiles. Accordingly, you have requested guidance as to what factors are to be considered in classifying personal buoyancy devices within subheading 6307.20, HTSUSA.

Webster's New World Dictionary, Third College Edition (1988) defines a life preserver as a "buoyant device for saving a person from drowning by keeping the body afloat, as a ring or sleeveless jacket of canvas-covered cork or kapok." Buoyancy is defined as "the ability or tendency to float or rise in liquid or air." A life belt is defined as "a life preserver in the form of a belt," and a life jacket (or vest) as "a life preserver in the form of a sleeveless jacket or vest." A life belt is a chiefly British term used to describe a flotation article with a textile exterior which fits around a child's waist. This article, as well as the traditional life jacket, has been classified by the United Kingdom Customs Administration based upon the construction of the article; warning labels that the article is "NOT A LIFE PRESERVER" are not dispositive.

To be classified under subheading 6307.20, HTS, an article must be considered "of textiles." See the discussion in HRL 952204, supra, with respect to deciding between Chapter 40 and Chapter 63. The article must also not be more specifically classifiable as a garment of Chapters 61 or 62. See the discussion above. Finally, if the article meets the commonly accepted definitions (above) of a lifejacket or a lifebelt, it is within the scope of the subheading at the international (six digit) level. This is true irrespective of the fact that the buoyancy device fails to meet U.S. Coast Guard specifications. Classification of a particular life saving device by various Customs administrations according to their national regulations would most likely result in a lack of uniformity in the treatment of the merchandise under the Harmonized System. Should the flotation device not conform to the commonly accepted definitions, e.g., the swim sweater, it is classified under subheading 6307.90, HTS, as an other made up article of textiles.

HOLDING:

As a result of the foregoing, personal flotation devices meeting the commonly accepted definition of lifejackets are classified under subheading 6307.20.0000, HTSUSA, as other made up articles, lifejackets and lifebelts. Should you have any further questions, please do not hesitate to contact the Chief, Textile Classification Branch, at (202) 482-7050.

Sincerely,

John Durant, Director
Commercial Rulings Division

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