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HQ 965313




January 14, 2002

CLA-2 RR:CR:TE 965313 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.29.0040

Mr. Tom Paciaffi
Coronet Brokers Corp.
P.O. Box 300764
Cargo Building 80
John F. Kennedy International Airport
Jamaica, NY 11430-0764

RE: Revocation of NY F83415, dated March 22, 2000; Classification of Buoyancy Compensator Vests; Dive Equipment; Chapter 95; Not Wearing Apparel.

Dear Mr. Paciaffi:

This letter is to inform you that Customs has reconsidered New York Ruling Letter (NY) F83415, issued to you on behalf of your client Cressi Sub USA, on March 22, 2000, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of five buoyancy compensators. After review of that ruling, it has been determined that the classification the buoyancy compensators in subheading 6211.43.0091, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes NY F83415.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NY F83415 was published on December 12, 2001, in the Customs Bulletin, Volume 35, Number 50. As explained in the notice, the period within which to submit comments on this proposal was until January 11, 2002. No comments were received in response to this notice.

FACTS:

The items that are the subject of this revocation are known as buoyancy compensators. In NY F83415, they were classified in 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 follows:

The items are Styles Air, Safety 108, Safety 104, Safety 102, Aquapro 6 and Aquapro 5 Buoyancy Compensator Jackets. The jackets are used during underwater diving. All jackets are made of a woven 100% nylon fabric. Although the styles vary, they feature such items as a carry handle, stainless steel rings, inflatable/deflatable bladders, weight pockets with dump ability, accessory clips, adjustable arm, chest and waist straps, hose retainer, storage pockets, utility rings and padded backs.

ISSUE:

Are the buoyancy compensators classifiable as dive equipment under subheading 9506.29.0040, HTSUSA?

ANALYSIS:

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 buoyancy compensators like the ones 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 buoyancy compensators is centered around buoyancy control. While features such as padding provide some warmth and protection, these benefits are ancillary to the function of allowing the diver to control her buoyancy. The instant buoyancy compensators are not garments or wearing apparel.

Customs has classified some articles with similar features to the instant buoyancy compensators 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 compensators that are equipped with an air bladder, inflation hose, exhaust valve, weight pouches and compressed air tank harness, are clearly pieces of equipment designed for scuba diving. Accordingly, they are classified as dive equipment under subheading 9506.29.0040, HTSUSA. For similar rulings on buoyancy compensators, see HQ 965106 and HQ 965312.

HOLDING:

The Safety 108, Safety 104, Safety 102, Aquapro 6 and Aquapro 5 buoyancy compensators are 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.

EFFECT ON OTHER RULINGS:

NY F83415, dated March 22, 2000, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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