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HQ 087946

December 24, 1991

CLA-2 CO:R:C:T 087946 JS


TARIFF NO.: 6114.30.3070

District Director
U.S. Customs
300 S. Ferry Street
Terminal Island
Room 2017
San Pedro, CA. 90731

RE: Request for further review of protest 2704-89-002301; inflatable swim aids known as swim sweaters

Dear Sir:

This is a determination on a protest timely filed by Stein Shostak Shostak & O'Hara, on behalf of their client, Kransco Manufacturing, Inc., against your decision on the classification of inflatable swimming aids.


The article at issue is an inflatable swimming aid, known as 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. According to the importer's advertising literature the purpose of the article is to permit the child to develop water confidence. 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. The article, according to counsel, provides the child with the freedom to move her arms and legs through the water. Counsel notes that the article is not designed to perform a life- saving function and is not sold for that purpose; he notes that the packaging specifically warns parents that the article should not be used as a lifesaving device.

The quantitative ratio between the rubber and nylon materials is not provided. However, the value of that ratio is stated as being 41 percent to 19 percent in favor of the rubber.


The relative entries were liquidated under subheading 6307.20.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other made up articles, lifejackets and lifebelts. Counsel, in a memorandum supporting its application for further review, noted that the subject article is not designed to perform as a lifesaving device and is not sold for such purposes. Counsel states that the swim sweater should be classified under subheading 4016.95.00, as other inflatable articles of rubber pursuant to General Rule of Interpretation (GRI) 3(b), which calls for articles consisting of different materials or made up of different components to be classified as if they consisted of the material or component which gives them their essential character.

You have indicated that you agree with the importer's position that the swim sweater should not be classified under the provision for lifejackets. You expressed the belief that neither the rubber inflatable portion nor the stretch nylon portion provides the essential character of the article. You also noted that while the inflatable portion of the article is necessary to provide buoyancy and flotation, the sweater portion, which holds the inflatable tube against the child, is necessary for the item to be used and that, without it, the tube would have no discernable function. Classification is therefore deemed appropriate under subheading 6307.90.9050, as other made up articles pursuant to GRI 3(c).


What is the proper classification of an article known as a swim sweater, which is composed of rubber and textile and is intended to be used as a swimming aid for young children.


The competing headings in this instance are heading 4016 (other articles of vulcanized rubber), heading 6114 (other knitted or crocheted garments), and heading 9506 (articles and equipment for gymnastics, athletics, other sports...or outdoor games...; swimming pools and paddling pools).

We agree with the importer that the article is not a lifesaving device. We do not agree, however, that the essential character of the article is the rubber component and that it should be classified as an article of rubber under GRI 3(b). As previously noted, the article could not be used for the intended purpose without both components. Thus, on the basis of GRI 1 alone, both heading 4016 and 6114, at least, are prima facie applicable. However, Chapter 40 Note 2(a) excludes goods of


Section XI, and heading 6114 describes this article in so far as it is a knit garment not more specifically provided for elsewhere in Chapter 61. Heading 4016 is therefore eliminated from consideration.

The intended use of the article as an instructional device for young swimmers leads us to consider heading 9506, which provides for sports articles and equipment, including those used in water sports. Chapter 95 Note 1(e) excludes sports clothing, of textiles, of Chapter 61 or 62, from the articles covered by Chapter 95. Therefore, for the same reasons that Chapter 40 Note 2(a) disqualified consideration of heading 4016, the exclusion of sports clothing from Chapter 95 serves to dismiss heading 9506 as a possible classification. The article at issue is made up, in significant part, of a sweater, which qualifies it as an article of heading 6114. Explanatory Note B(13) of heading 9506, which includes protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, and shin pads, does not resurrect the possibility of including the item at issue in face of Note 1(e).

The classification you suggest, heading 6307, fails in light of the greater specificity provided by heading 6114, HTSUSA, which describes articles that may be worn.


This merchandise is properly classified under subheading 6114.30.3070, HTSUSA, which provides for other garments, knitted or crocheted: of man-made fibers: other, other: women's or girls', textile category 659, dutiable at the rate of 16.1 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director

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