HQ 0088542 - Protest 1801-89-000023; Protest denied; Wetsuits; Neoprene; Diving suits; sports equipment; use; garment; sports clothing; headgear; footwear. - United States International Trade Commision Rulings

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HQ 088542

May 1, 1992

CLA-2 CO:R:C:T 088542 KWM

CATEGORY: CLASSIFICATION

TARIFF: 6113, 6114, 6404, 6505, 6116

Ms. Diane A. Zwicker
District Director of Customs
United States Customs Service
4430 East Adamo, Suite 301
Tampa, Florida 33605

RE: Protest 1801-89-000023; Protest denied; Wetsuits; Neoprene; Diving suits; sports equipment; use; garment; sports clothing; headgear; footwear.

Dear Ms. Zwicker:

This protest was filed against your decision in the liquidation of three entries of goods described as wetsuits manufactured in St. Lucia, West Indies. For the reasons below, we find that the protest should be DENIED.

FACTS:

Three entries are at issue: two dated January 18, 1989, and liquidated on May 5, 1989, and one dated January 31, 1989, and liquidated March 24, 1989. The protest was timely filed on June 5, 1989, and qualifies for further review under Section 174.24 of the Customs Regulations.

Several submissions have been made by counsel for the importer, and a meeting was held with representatives of the Customs Service on September 30, 1991. At the September 30, 1991, meeting samples were provided for inspection.

The merchandise at issue is described as "wetsuits", which are garments used while engaged in water sports activities. The wetsuits in question are made from a neoprene and textile laminate, which consists of a layer of neoprene rubber "sandwiched" between two layers of textile. The composite material serves to insulate the body by allowing a thin layer of water between the interior surface of the suit and the wearer's skin. When the body and the water layer reach an equilibrium temperature, heat loss is reduced.

The invoices of each entry describe different styles of wetsuits: the "short", the "farmer pant" and the "jumpsuit", each of which covers the body to one extent or another. In addition, the supporting documents indicate that two types of material are used. The first is called "Sea-flex" and consists of a neoprene rubber layer to which knit fabric has been laminated on both the interior and exterior surfaces. The second is called "Durasoft", and is similar in construction except that a plush or pile material is present on the interior surfaces.

The protest also include neoprene/textile laminate footgear, headgear and gloves, each made from materials similar or identical to the wetsuits.

ISSUES:

Are all of the articles classified as sports equipment of heading 9506, HTSUSA, as suggested by the Protestant, or are they classified in separate headings, each providing for a particular class of goods?

LAW AND ANALYSIS:

A. Headings under consideration

1. Protestant suggests that heading 9506, HTSUSA, provides for all of the protested merchandise:

9506 Articles and equipment for gymnastics, athletics, other sports
. . . or outdoor games, not specified or included elsewhere in this chapter; . . .

Water sports, surfboards, sailboards and other water- sports equipment; parts and accessories thereof:

2. The port of entry classified the wetsuits under either heading 6113, or 6114, HTSUSA:

6113 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: . . .
for garments made of the "Sea-flex" material, which would be classified under heading 5906, HTSUSA, as a "rubberized textile fabric" as provided by Legal Note 4 to Chapter 59, HTSUSA. Additionally,

6114 Other garments, knitted or crocheted:
for garments made from the "Durasoft" material, which would be classified in heading 6001, HTSUSA, by operation of Legal Note 1(c) to Chapter 60, HTSUSA, which provides that laminated pile fabrics are classified in heading 6001, HTSUSA.

3. The remaining merchandise, footwear, headgear, and gloves were classified in, respectively:

6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:

6505 Hats and headgear, knitted or crocheted, or made up from lace, felt or other textile fabric . . .

6116 Gloves, mittens and mitts, knitted or crocheted:

B. Mutually exclusive Legal Notes to Chapters 61 and 95, HTSUSA

Counsel asserts, and we agree, that the operation of the Legal Notes to Section XI, HTSUSA, and Chapter 95, HTSUSA, serve to mutually exclude from classification by GRI 1, in either chapter, merchandise which is classified in the other. In other words, articles of Chapter 61, HTSUSA, cannot be classified in Chapter 95, HTSUSA, by operation of Legal Note 1(t) to Section XI, HTSUSA, and vice versa, by Legal Note 1(c) to Chapter 95, HTSUSA.

C. Heading 9506, Articles and Equipment for Sports

A central question to this protest is the scope of heading 9506, HTSUSA. In determining the scope of the heading, Customs looks to the language of the tariff, in this case providing for "articles and equipment" for sports. In almost every case Customs consults the Explanatory Notes to the HTSUSA, which provide insight into the intended scope of a heading. The Explanatory Notes represent the official interpretation of the tariff at the international level, and are the best source for inquiring into a heading's scope.

Specifically, the Explanatory Notes to heading 9506, HTSUSA, indicate that the heading includes, inter alia:

(B) Requisites for other sports and outdoor games . . . e.g.:

(2) Water-skis, surf-boards, sailboards and other water sport 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 and divers.

(13) Protective padding for sports games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads and shin-guards.

The heading excludes:

(c) Sports gloves (generally heading 42.03).

(e) Sports clothing of textile materials, of Chapter 61 or 62.

(g) Sports footwear (other than ice or roller skating boots with skates attached) of Chapter 64 and sports headgear of Chapter 65.

(k) Frogmen's and other goggles (heading 94.04).

Emphasis added. The Explanatory Notes indicate, in our opinion, that Chapter 95 is limited to "apparatus and appliances", and that clothing or other garments are excluded. Sports clothing, regardless of any protective features indicating it is designed specifically for a particular sport, is excluded from Chapter 95, HTSUSA, with no exceptions. Legal Note 1(e) to Chapter 95, HTSUSA.

Protestant argues that wetsuits should be considered "equipment" of heading 9506. Protestant argues that we should apply a definition of "sports equipment" based on the goods' function which in turn is derived from their intended use. In effect, 9506, HTSUSA, would become a "use" heading. We do not believe any functional distinctions found among the goods of heading 9506, HTSUSA, or any other heading, lead to its consideration as a "use" provision. A general material versus function distinction among the headings of the HTSUSA, does not equate to designation of function related headings to use provisions. While use may properly be considered in identifying goods for consideration of an eo nomine provision, it should not be a criterion for classification where the provision is clear in its scope. (F.W. Myers & Co., v. United States, 24 Cust.Ct. 178 (1950) and United States v. Quon Quon Company, 46 CCPA 70, C.A.D. (1959)). Customs considers heading 9506, HTSUSA clear in scope. Use may be a consideration, but it is not dispositive. When, as in this case, the goods are not otherwise eligible for inclusion even in a function related heading, they are not classified therein.

Viewing heading 9506, HTSUSA, as an eo nomine, provision, we have considered the wetsuits at issue. Protestant urges classification as "other water-sport equipment", the scope of which found in part among the more specific items named elsewhere in the heading. Protestant argues that wetsuits are similar articles: wetsuits are designed for use in a sport, and are required for use in that sport. Design intent and/or requirement(s) for participation are not considered dispositive of classification. The term "equipment" describes a particular type of good. The exemplars provided by the tariff include skis, surfboards, skates, balls, and rackets, and those provided by the Explanatory Notes include diving platforms, flippers, and snorkels, all of which are clearly appliances or apparatus for use in sports. Certain items, such as sports footwear or sports headgear, are specifically excluded from heading 9506, HTSUSA, despite special design features. Design intent does not equate with classification as equipment. In this case, protestant's arguments that the wetsuits are design for use while diving indicate only that a "sport" activity may be involved.

Customs has classified within heading 9506, HTSUSA, certain articles which protect or pad persons from the shock of blows, such as fencing masks or equestrian body protectors. This does not extend to textile garments worn while engaged in a sport, such as fencing suits or racing silks, or other more ordinary sports clothing which may also be required for participation or competition in sports activities. Evidence that an article is required is a factor in establishing that it is protective. We find that the "requirement" of a wetsuit does not bring it within the scope of protective equipment. The protective equipment exemplars of heading 9506, HTSUSA, are goods clearly distinct from wetsuits. Protestant further argues that wetsuits are not worn by divers except while diving; they are uncomfortable for wear out of the water. We find that bulkiness and comfort are relevant only to the extent that they distinguish protective clothing. A distinction exists among the headings of the nomenclature between clothing (including protective clothing) and protective equipment. The nomenclature clearly anticipates the distinction we have drawn: that sports clothing and sports equipment are provided for in different tariff provisions.

The wetsuits in question are used for water-sport activities; their design evidences that such is the intended use. However, intended use and physical design features indicate to us only that a nexus exists between the goods and sporting activities. They do not dictate classification as "equipment" as Protestant argues. Further, any requirement which may exist for their use tends to indicate only that they are protective in nature, and not that they are "equipment." Heading 9506, HTSUSA, provides for appliances or apparatus, "equipment" in the language of the tariff, a type of good distinct from garments such as these. We find that the wetsuits are therefore not classifiable in heading 9506, HTSUSA.

D. Headings 6113 and 6114, HTSUSA

Protestant argues that wetsuits are not worn for purposes of decency, comfort or adornment. Hence, they cannot be garments or sports clothing. In addition, protestant argues that classification as equipment precludes classification as sports clothing. We have determined above that we do not consider the wetsuits classifiable as sports equipment. Therefore, we have considered classification as garments in headings 6113 and 6114, HTSUSA.

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 article 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. We find that wetsuits are also so classified.

Like other exemplars of headings 6113 and 6114, wetsuits are specialized articles of sports clothing. The presence of protective features does not preclude classification as a garment; protective clothing is provided for as garments. Protestant's arguments that limitations on use and restraint of movement are also unpersuasive. Like other types of protective clothing, we do not consider it unusual that wetsuits are not the most comfortable garments or may be limited to specific sporting activities.

Protestant also returns to use as the determining factor in our analysis. We do not agree. As we stated above, 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 suggest that "the ultimate test of whether an article is wearing apparel depends on its use", citing Dynamics Classics, Ltd. v. United States, 10 CIT 666 (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.

We find that use of a wetsuit during a sports activity indicates that it may be an article of sports clothing. Further, even if we accept protestant's argument that the wetsuit is not worn for "decency, comfort or adornment", we are not persuaded that such a limitation on use precludes classification as a garment or sports clothing. The "garment" headings of chapter 61, HTSUSA, provide for certain types of goods, and we find that wetsuits are classifiable as protective sports clothing of chapter 61, HTSUSA.

E. GRI 4

General Rule of Interpretation 4 provides that:

Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.

Assuming, arguendo, that protestant correctly argues that the wetsuits are described by the terms "sports equipment", we believe that two headings may describe the goods although both headings cannot prima facie classify the goods since the legal notes are mutually exclusive, as noted above. Therefore, GRI's 1 through 3 direct us to two headings whose terms describe the wetsuits but whose applicable legal notes exclude the other from consideration. The headings describe goods not classifiable by "the above rules." In the case, assuming that both headings describe the goods, we believe that the garments headings provide for products which are most akin to wetsuits. Wetsuits are fitted to cover the body, as are ski suits or coveralls. They have protective features as do radiation suits or airmen's clothing. They are sized and manufactured like other garments. Wetsuits are not the same as the equipment found in heading 9506, HTSUSA. They are not akin to water skis, surfboards, etc. Therefore, even if we were to accept Protestant's arguments that the wetsuits were equipment, we would not agree that such a finding necessarily excludes consideration of the garment headings. Considering the similarities among the various exemplars, we would still classify the wetsuits as garments.

F. Footwear, Headgear and Gloves

By an analysis parallel to that described above, footwear, headgear and gloves made from neoprene/textile laminate and designed for use in a water-sport activity are not classifiable as "water-sports equipment", but are classifiable as sports footwear, sports headgear and sports gloves, respectively.

HOLDING

The protest should be DENIED in full.

All styles of the wetsuits, regardless of the extent to which they cover the wearer's body, are classified as garments in chapter 61, HTSUSA. Wetsuits made from the "Sea-flex" material, have a knit or crocheted fabric laminated to both sides of the neoprene rubber, are classified in heading 6113, HTSUSA. Wetsuits made from the "Durasoft" material, having a plush or pile material laminated to the interior surface are classified in heading 6114, HTSUSA,

Footwear manufactured from both type of neoprene/textile laminate are classified in heading 6404, HTSUSA.

Headgear manufactured from both types of neoprene/textile laminate are classified in heading 6505, HTSUSA.

Gloves manufactured from both types of neoprene/textile laminate are classified in heading 6116, HTSUSA.

A copy of this decision should be attached to the CF 19, notice of action, to be provided to the protestant.

Sincerely,

John A. Durant, Director

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