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HQ 965106




November 21, 2001

CLA-2 RR:CR:TE 965106 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.29.0040

Mr. William Tinney
Attorney In Fact
International Freight Service, Inc.
1610 Rollins Road
Burlingame, CA 94010

RE: Request for Binding Ruling; Classification of Buoyancy Compensator Vest; Dive Equipment; Chapter 95; Not Wearing Apparel.

Dear Mr. Tinney:

This letter is in reply to your request for a binding ruling received by the U.S. Customs Service on April 7, 2001. The request was submitted on behalf of Oceanic, Inc., and concerned the classification of a buoyancy compensator vest. Prior to the issuance of this ruling a sample of the merchandise and all submissions were considered. A meeting was not requested.

FACTS:

The item under consideration is known as a buoyancy compensator. The buoyancy compensator submitted, style ISLA, is a vest constructed of a flexible stretchable material known as BioFlex (U.S. patent #5,403,123). The material is cut, sewn and sealed to form an inflatable bladder that constitutes the vest. The bladder is inflated by a tube which extends from the back top of the vest , down the shoulder harness, to the diver’s front. The diver can either inflate the vest manually, by blowing into the tube, or can inflate the vest by attaching the regulator to the tube. The vest is equipped with a large exhaust valve with a pull cord that releases the air from the vest. On each side of the front of the buoyancy compensator is a pouch with hook and loop closures. The pouches are designed to hold weights that provide negative buoyancy while diving. By inflating and deflating the buoyancy compensator, in conjunction with the weights inserted into the front pockets, the diver is able to control his or her buoyancy throughout all stages of a dive.

The exterior center back of the buoyancy compensator is molded plastic, shaped to cradle the compressed air cylinder. A heavy plate of plastic on the inside of the vest counter balances the weight of the compressed air cylinder when in place in the “cradle.” A heavy strap with hook and loop fasteners secures the cylinder in place. A carry handle allows for easy transportation of the buoyancy compensator and tank.

ISSUE:

Is the buoyancy compensator vest classifiable as dive equipment under subheading 9506.29.0040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

ANALYSIS:

In two previous rulings Customs classified buoyancy compensators similar to the one under consideration in Chapter 62, HTSUSA, as wearing apparel. Customs is in the process of revoking the two following rulings.

New York Ruling Letter (NY) E82612, dated June 14, 1999, classified a buoyancy compensator “jacket” under subheading 6210.50.5055, HTSUSA, which provides in pertinent part, for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Other women’s or girls’ garments: Of man-made fibers: Other . . . Other.” The buoyancy compensator was described as a jacket composed of a shell of woven 100% nylon coated on the inside with polyurethane. The buoyancy compensator was designed for diving, having an inflatable bladder, woven polypropylene straps, a buoyancy compensator hose retainer, a rear adjustable buckle, strap and harness for air tanks, and a padded inner back for comfort.

NY F83415, dated March 22, 2000, classified five buoyancy compensator “jackets” under subheading 6211.43.0091, HTSUSA, which provides, in pertinent part, for “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls: Of man-made fibers, Other.” The buoyancy compensators were described as jackets used during underwater diving. All of the jackets were made of a woven 100% nylon fabric. All had features such as a carry handle, stainless steel rings, inflatable/deflatable bladders, weight pockets with dump ability, accessory clips, adjustable arms, chest and waist straps, hose retainer, storage pockets, utility rings and padded backs.

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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. In the event that 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 GRI may then be applied.

Chapter 62 covers articles of apparel that are not knitted or crocheted. In order to classify the buoyancy compensator in Chapter 62, HTSUSA, it must be considered wearing apparel. Buoyancy compensators are designed to be worn and, therefore, fall generally within the class or kind of articles considered wearing apparel. See Arnold v. United States, 147 U.S. 494, 496 (1892). See also HQ 952204, dated April 12, 1993. 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 developed the standard that items are not considered wearing apparel when the use of those items goes ‘far beyond that of general wearing apparel.’

Admiral Craft Equipment. Corp. v. United States, 82 Cust. Ct. 162, C.D. 4796 (1979) Daw Industries, Inc. v. United States, 714 F.2d 1140, 1143 (Fed. Cir. 1983). In Daw Industries the Court found that sheaths and socks used exclusively with prostheses do not provide "significantly more, or essentially different," protection than analogous articles of clothing, but merely "differ incrementally.” The Court concluded that while in some cases the differences may become so large that the article is no longer wearing apparel, that was not the case with the sheaths and socks.

In HQ 952204, dated April 12, 1993, Customs applied the reasoning relied upon in Daw Industries when considering the classification of a “swim sweater” which is a flotation device that functions as a swimming aid for children. Customs found that while the “swim sweater” provides some protection from the elements and arguably adorns the body, it is used in very specific situations. Customs concluded that the increment in the difference in use and effect between the “swim sweater“ and a conventional sweater is so large that the “swim sweater” is no longer wearing apparel. For additional rulings finding that “swim sweaters” are not wearing apparel, see HQ 952483, dated May 27, 1993; HQ 95590, dated January 31, 1994; HQ 953775, dated April 12, 1993; and HQ 953776, dated April 12, 1993.

The use of the buoyancy compensators like the one discussed herein, whether in the form of a vest or a jacket, goes far beyond that of a typical jacket or vest. Buoyancy compensators are designed to provide SCUBA divers with neutral buoyancy. The acronym SCUBA stands for “Self Contained Underwater Breathing Apparatus.” U.S. Navy Diving Manual, Appx. 1D-9. “Divers usually seek a condition of neutral to slightly negative buoyancy. . . . Neutral buoyancy enhances a scuba diver’s ability to swim easily, change depth, and hover.” Negative buoyancy gives a diver in a helmet and dress (Navy term for apparel and gear) a better foothold on the bottom. U.S. Navy Diving Manual, 2-9.4.2, p. 2-14. U.S. Navy Diving Manual, 2-9.4.2, p. 2-14. In order to maintain neutral buoyancy, divers use a combination of inflatable air bladders contained within the buoyancy compensator and weights.

In HQ 950562, dated January 9, 1992, Customs classified a Stratus snorkeling vest designed to provide surface flotation as well as warmth as a garment. This ruling was affirmed in HQ 952483, dated May 27, 1993. The vest was constructed by bonding a flotation pocket to a neoprene vest. Relying on the EN to Heading 6113, HTS (heading includes oilskins & divers' suits), Customs reasoned that if the neoprene vest were imported without the flotation pocket, it would be classified as a garment. Customs next considered, in light of Daw Industries, supra, whether the additional protection and other advantages afforded by the flotation pocket were "significantly more, or essentially different," than those provided by the neoprene vest alone. Because marketing materials stated that the vest was “designed to provide warmth and a small amount of flotation,” Customs concluded that the snorkeling vest did not differ significantly from a neoprene vest alone, and affirmed HQ 950562.

Whereas the snorkel vest had dual functions of providing warmth and buoyancy, the entire design of the Isla buoyancy compensator is centered around buoyancy control. It has features such as padding that provide comfort from the heavy and bulky load. While these features provide some warmth and protection, these benefits are ancillary to the function of allowing the diver to control her buoyancy. The Isla buoyancy compensator is not a garment or wearing apparel.

Customs has classified some articles with similar features as the Isla buoyancy compensator in Chapter 63 as lifejackets or lifebelts. In HQ 952204 (classifying the swim sweaters discussed above), Customs relied upon the following definitions of lifejackets and lifebelts:

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."

Customs noted that the swim sweaters did not meet U.S. Coast Guard specifications for lifepreservers. However, because they meet the common definition of a lifepreserver, they were classifiable as such.

Likewise, in HQ 950496, dated March 5, 1992, Customs classified a windsurfer's buoyancy vest within subheading 6307.20, HTSUSA, as a lifejacket, even though it did not meet the U.S. Coast Guard specifications for life preservers. See also HQ 952930, dated February 25, 1993. The basis of this ruling was that while the article did not meet U.S. Coast Guard specifications, its main purpose was to help keep the wearer afloat. See also NY G87464, dated March 13, 2001 (classifying a bib-like snorkel vest as a lifejacket under subheading 6307.20, HSUSA). Unlike the snorkel vest in HQ 950562, this snorkel vest only consisted of the flotation bib and did not have a neoprene vest to add warmth and protection.

In contrast, the primary function of a buoyancy compensator is to control buoyancy, be it negative buoyancy or positive buoyancy, at all stages of a dive. While a buoyancy compensator can be, and is, used to help divers float on the surface, this is merely one end of the spectrum of its capabilities. At the other end of the spectrum, divers can deflate the buoyancy compensator allowing them to descend to their desired depth, at which point the buoyancy compensator can be inflated as needed to maintain neutral buoyancy. The inflatable bladder, inflation tube with mouthpiece, exhaust valve and weight pouches makes this vest an adjustable apparatus that acts to increase or decrease buoyancy to counteract the weight of the air tank or the buoyancy of a wet suit.

Subheading 9506.29.00.40, HTSUSA, provides for:

Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Water skis, surf boards, sailboards and other water-sport equipment; parts and accessories thereof: Other, Other.

The EN to heading 9506, HTSUSA, state:

This heading covers:

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

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

The legal note to Chapter 95 excludes sports clothing of chapters 61 and 62. However, this exclusionary note does not operate to exclude buoyancy compensators from Chapter 95 because, as discussed above, buoyancy compensators are not clothing.

It is well settled that equipment used for scuba diving is classified in subheading 9506.29.0040, HTSUSA. See, H.I.M./Fathom, Inc., v. United States, 21 C.I.T. 776, 981 F. Supp. 610 (classifying a weight belt used for diving in subheading 9506.29.0040, HTSUSA (1997)); NY 81357, dated August 23, 1995, and NY G86744, dated February 12, 2001, (classifying weight belts as diving equipment). The instant buoyancy compensator, with its air bladder, inflation hose, exhaust valve, weight pouches and compressed air tank harness, is clearly a piece of equipment designed for scuba diving. Accordingly, the Isla Buoyancy Compensator is classified as dive equipment under subheading 9506.29.0040, HTSUSA.

HOLDING:

The Isla buoyancy compensator is classified under subheading 9506.29.0040, HTSUSA, which provides for “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Water skis, surf boards, sailboards and other water-sport equipment; parts and accessories thereof: Other, Other.” The duty rate is FREE.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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