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HQ 966391




October 7, 2003

CLA-2 RR:CR:TE 966391 KSH

TARIFF NO.: 6112.41.0040, 6112.31.0020

Donna L. Shira, Esq.
Sharrets, Paley, Carter & Blauvelt, P.C.
Seventy-five Broad Street
New York, NY 10004

RE: Modification of New York Ruling Letter (NY) I87533, dated November 5, 2002; Classification of girls’ and boys’ Float Suits

Dear Ms. Shira:

This letter is to inform you that the Bureau of Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) I87533, issued to you on November 5, 2002, on behalf of your client Authentic Fitness Corporation, concerning, in part, the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of two articles worn by boys and girls and identified as a float suit.

NY I87533 also classified a swim vest. That classification is not in issue for purposes of this modification. The articles were classified in subheading 6307.90.9889, which provides for “Other made up articles, including dress patterns: Other: Other: Other, Other: Other.” We have reviewed that ruling and, with respect to the float suits, found it to be in error. Therefore, this ruling modifies NY I87533 as it pertains to the classification of the float suits.

Pursuant to section 625(c), Tariff Act of 1930, as amended by section 623 of Title VI (Customs Modernization) of the North America Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) notice of the proposed modification of NY I87533 was published on July 16, 2003, Vol. 37, No. 29, of the Customs Bulletin. Three comments were received in response to this notice. Your comment presented arguments which were considered and addressed prior to the proposed notice and will not be addressed again in this document. The remaining two comments requested confirmation of the appropriate classification of items with non-removable flotation padding in subheading 6307.90.9889, HTSUS, as stated in NY J82273, dated March 27, 2003. As a result of these two comments we have reexamined our files and determined that we had mistakenly understood the articles described in NY J81177, NY H89257, and NY I80416 to have removable foam inserts. Consequently, we have abandoned our proposed revocation of NY J81177, NY H89257, and NY I80416.

FACTS:

The merchandise at issue consists of a boys’ float suit, style number 7530038 and a girls’ float suit, style number 7530040. The boys’ and girls’ float suits are one piece full body suits made of 80 percent polyester/20 percent nylon stretch knit fabric. The upper torso’s interior, back, and front is constructed with eight pockets with secured flaps. Removable foam inserts are contained in the pockets. With these in place, the articles are used as a swimming aid for children ages 2-4. The articles feature a partial zippered opening at the back. The enclosed paper label states: “This is not a life saving device.”

ISSUE:

Are the textile articles at issue classifiable as swimsuits or as other made up articles.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

Chapter 61 covers certain articles of apparel that are knitted or crocheted. Heading 6112, HTSUSA, provides for track suits, ski-suits and swimwear, knitted or crocheted. In order for the article to be classified in Chapter 61, HTSUSA, the article must be considered wearing apparel. Heading 6307, HTSUSA, provides for other made up textile articles not more specifically provided for elsewhere in the tariff schedule. To be classified under Heading 6307, HTSUSA, the article must be considered “of textiles”, “made up”, within the meaning of Note 7, Section XI, and must not be more specifically classifiable as a garment of Chapter 61.

It is your position that, “the instant float suits cannot be classified as garments because their primary use is as flotation devices and they cannot be used in the same manner as traditional swimsuits.” You argue that the float suits’ inserts are not intended to be removed other than for cleaning or replacement and to do otherwise would cause the articles to be unusable due to gaping and general discomfort.

In Arnold v. United States, 147 U.S. 494, 496 (1892), the Supreme Court defined "wearing apparel" as "not an uncommon one in statutes, and . . . used in an inclusive sense as embracing all articles which are ordinarily worn -- dress in general." In Antonia Pompeo v. United States, 40 Cust. Ct. 362, 365, C.D. 2006 (1958), it was held that the term wearing apparel includes articles worn by human beings for reasons of decency, comfort or adornment, but does not include articles worn as a protection against the hazards of a game, sport or occupation. And, in Jack Bryan, Inc. v. United States, 72 Cust. Ct. 197, 204, C.D. 4541 (1974) the Court stated that the term wearing apparel is generic or descriptive and that under prior tariff acts it was held to mean all articles of wearing apparel worn by human beings for reasons of decency, comfort and adornment.

However, whether an article is to be considered wearing apparel depends on its use. See Admiral Craft Equipment Corp. v. United States, 82 Cust. Ct. 162, 164, C.D. 4796 (1979). In Daw Industries, Inc. v. United States, 1 Fed. Cir. 146, 150 (1983), the Court of Appeals for the Federal Circuit further elaborated that virtually all wearing apparel is to a degree (often a high degree) designed and worn to provide comfort and protection, often for very specific situations. The pivotal issue is whether the incremental difference in the article to be used in a specific situation has become so large that the article is no longer wearing apparel.

The packaging for the float suit states that it is a great tool for helping teach young swimmers, allows children to move their arms and legs freely, builds water confidence and provides UV protection. The float suits provide protection from the elements, protect the decency of the wearer and may even be said to adorn the body. While the float suits may provide some buoyancy and be used as a swimming aid the additional protection and other features of the float suit are not significantly more or essentially different than a swimsuit alone. Thus, we conclude that the float suits are wearing apparel.

HOLDING:

NY I87533, dated November 5, 2002, is hereby modified.

The float suits are properly classified in subheading 6112.41.0040 and 6112.31.0020, HTSUSA, which provide, respectively, for “Track suits, ski-suits and swimwear, knitted or crocheted: Women’s or girls’ swimwear: Of synthetic fibers, Other: Girls’” and “Track suits, ski-suits and swimwear, knitted or crocheted: Men’s or boys’ swimwear: Of synthetic fibers: Boys’.” The general column one duty rates are 25.1 percent and 26.1 percent, ad valorem, respectively. The textile category is 659.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bi-lateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, an issuance of CBP which is available on the CBP website at www.cbp.gov.

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 CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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